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Dearel F. Gibson v. S. Sedwick

October 12, 2012

DEAREL F. GIBSON,
PLAINTIFF,
v.
S. SEDWICK,
DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING CERTAIN CLAIMS

(ECF No. 12)

I. Screening Requirement

Plaintiff Dearel F. Gibson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 8, 2012, Plaintiff's complaint was dismissed, with leave to amend, for failure to state a claim. (ECF No. 9.) Currently before the Court is Plaintiff's first amended complaint, filed October 5, 2012. (ECF No. 12.)

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678-79, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).

II. Complaint Allegations

Plaintiff brings this action against Defendant Sedwick alleging that on September 20, 2010, she searched his cell and threw his property on the ground. When Plaintiff returned to his cell the property was wet and ruined. (First Am. Compl. 9,*fn1 ECF No. 12.) The day prior, Defendant Sedwick told Plaintiff to show her his identification card and a verbal confrontation ensued. Plaintiff claims that Defendant Sedwick is subjecting him to unnecessary retaliatory searches. Plaintiff complains that his cell is being searched by Defendant Sedwick at least twice a week. (Id. at 10.) Plaintiff contends that he has witnessed Defendant Sedwick target the cells of black inmates because she does not like them. (Id. at 12-13.) Plaintiff went to complain about Defendant Sedwick and the sergeant placed him in a holding cell for two hours to allow him to calm down. Plaintiff states he never got angry or lost his composure over his personal property being thrown on the ground. (Id. at 13.) Prior to the September 20, 2010, search, Defendant Sedwick and another officer had searched his cell and confiscated his orthopedic shoes which were prescribed for his bad feet. Plaintiff was informed by the correctional officers that he was not allowed to possess all black shoes, but other inmates on the C-Yard possess all black shoes. (Id. at 14.)

Plaintiff filled out an inmate request for interview form regarding the conduct of Defendant Sedwick and has never received a response. (Id. at 13.) Plaintiff states that he mailed his Director's Level Appeal on January 18, 2011, and has not received a response back. (Id. at 14.) After Plaintiff received his appeal back from the Director's Level, Defendant Sedwick wrote two frivolous rule violations against Plaintiff within 180 days. (Id. at 15.) On September 23, 2011, Defendant Sedwick searched Plaintiff's cell and took his hot pot without leaving a cell search receipt slip. (Id. at 16.)

Plaintiff brings this action solely against Defendant Segwick alleging violations of his right to freedom of speech, freedom of association, freedom of religion, and retaliation under the First Amendment; due process and equal protection under the Fourteenth Amendment; freedom from unreasonable searches under the Fourth Amendment; and cruel and unusual punishment under the Eighth Amendment. (Id. at 10.) Plaintiff is seeking a declaration that his rights have been violated, injunctive relief and damages. (Id. at 19.)

III. Discussion

A. First ...


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