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Nigel Gillings v. Lepe

December 21, 2012

NIGEL GILLINGS,
PLAINTIFF,
v.
LEPE, ET AL., DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)

AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Nigel Gillings, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on September 17, 2012, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.) His Complaint is now before the Court for screening.

II. 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).

III. SUMMARY OF COMPLAINT

The Complaint identifies Lieutenant Lepe and Warden Rios, officials at the United States Penitentiary, Atwater (Atwater), as the sole Defendants.

Plaintiff alleges the following:

On the morning of May 21, 2011, Plaintiff's cell became flooded with more than three inches of water. Officer Garcia alerted Plaintiff and his cell mate, Mr. Holmos, to the situation and provided towels and sheets to clean up the water. Plaintiff's legal work and family photos were damaged. Plaintiff requested Defendant Lepe's presence and, when he arrived, asked for a memorandum documenting the damage and its cause. Lepe refused. (Compl. at 3.)

Defendant Lepe then began speaking with Holmos. Plaintiff waited with an affidavit he had prepared detailing the damage in the hopes that Lepe would sign. The cell door's food slot was open and "suddenly" Lepe tried to close it on Holmos' arm. Lepe then sprayed seven bursts of a chemical gas into the cell and onto Plaintiff. (Id.)

Plaintiff's face, body, and genitals burned. He struggled to breath and went towards the food slot for fresh air. Lepe closed the slot at that time and "look[ed] on gleefully." (Id. at 14.) Lepe kept the door closed for several minutes while Plaintiff begged. Afterwards Plaintiff ...


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