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Gerardo Garcia v. Cdcr

October 30, 2012

GERARDO GARCIA,
PLAINTIFF,
v.
CDCR, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM AMENDED COMPLAINT DUE WITHIN THIRTY DAYS (ECF No. 1)

Plaintiff Gerardo Garcia ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.)

Plaintiff initiated this action on July 25, 2012. (Compl., ECF No. 1.) Plaintiff's Complaint is currently before the Court for screening. No other parties have appeared in this action.

The Court finds that Plaintiff's Complaint fails to state a claim. Plaintiff will be given leave to file an amended complaint.

I. SCREENING REQUIREMENT

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, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

§ 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

II. SUMMARY OF COMPLAINT

Plaintiff is currently incarcerated at Kern Valley State Prison ("KVSP"), where the events alleged in his Complaint occurred. Plaintiff alleges that the following individuals failed to protect him and thereby violated his rights under the Eighth Amendment: 1) CDCR, 2) CDCR Representative from KVSP, 3) Warden, 4) Capt. "C Fac.", 5) Lt. "C Fac.", 6) Lt. "B Fac.", 7) CCII "C Fac.", 8) CCII "B Fac.", 9) K. Molto, 10) SGTs on "B C Fac.", 11) John Does, 12) John Doe # 1, warden from 6/14/11 to 7/12/11 at KVSP, 13) O. Smith, 14) D. Goree, 15) John Doe # 2, employed as "B Fac. Lt.", 16) John Doe # 3, employed as "C Fac. Lt.",17) John Doe # 4, employed as "B Fac. Sgt.", 18) L. Kirby, employed as "C Fac. Sgt", 19) M. Jones, employed as "C Fac. Sgt", and 20) John Does #5-10.*fn1

Plaintiff alleges as follows:

On May 9, 2009, Plaintiff was involved in an altercation with a an inmate Gonzales. (Compl. at 8.) Later, in November of that year, he was transferred to KVSP . (Id.) He listed inmate Gonzales as one of his known enemies. (Id. at 4.) On June 14, 2011, Plaintiff was informed that he would be housed in Administrative Segregation ("Ad-Seg") until space could be found for him in D Facility because inmate Gonzales was now housed in C Facility. (Id. at 8.) Soon thereafter Defendant Goree updated Plaintiff's list of known enemies to indicate that Defendant Gonzales had been transferred to Corcoran State Prison even though he was still at KVSP. (Id.)

On July 9, 2011, Defendant Doe # 4 told Plaintiff he was being removed from AdSeg and he was placed in the custody of Defendants Kirby or Jones, whom he asked about inmate Gonzales' whereabouts. (Compl. at 9.) He was told inmate Gonzales must have been transferred. Plaintiff ultimately was housed in C Facility. (Id.) On July 12, 2011, Plaintiff found inmate Gonzales on the C Facility yard. (Id.) Due to his safety concerns, Plaintiff immediately reacted to inmate Gonzales' presence. (Id.)

Plaintiff asks for at least $200,000 in damages from CDCR, $50,000 from Defendants Smith and Goree, $15,000 from Defendants Does # 2 and 3, and $10,000 from Defendants Doe # 4, Kirby, and Jones. (Compl. at 3.) Plaintiff also asks that he be immediately released from the Secured Housing Unit, to have the incident removed from his file, and to be transferred to another prison where he does not have any documented enemies. (Id.)

IV. ANALYSIS

A. 42 U.S.C. § 1983

To state a claim under 42 U.S.C. ยง 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 ...


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