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Anthony E. Mack v. A. Frazier

January 30, 2013

ANTHONY E. MACK,
PLAINTIFF,
v.
A. FRAZIER, 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

On January 11, 2010, Plaintiff Anthony E. Mack, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff's 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).

Section 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). Section 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).

III. SUMMARY OF COMPLAINT

The Complaint identifies the following individuals as Defendants: (1) A. Frazier; (2)

M. Robinson; (3) B. Long; (4) Uribe; (5) V. Mclaughlin; (6) L.N. Dovey; (7) J. Walker; (8) Lt. Moreno; (9) D. Martinez; (10) W.J. Sullivan; (11) T. Steadman; (12) F. Gonzales; (13) M. Bryant; (14) E. Noyce; (15) M. Montano; (16) T. Peterson; (17) R. Redenius; (18) J.L. Petersen; (19) R. Wenciker, SHU Property Officer, California Correctional Institution; (20) Emmerson; (21) Allison; (22) B. Kearnes; (23) Sgt. Heildt; (24) Sgt. Mayo; (25) D. Morton; (26) D. Selvy; (27) R. Morrow; (28) K. Sampson; (29) C. Moats; (30) Papillion; (31) Cardenas; (32) Carrasco; (33) Lt. Ramos; (34) Redelsperger; (35) M. Yarbarough; and (36) John/Jane Does one through seven.

Plaintiff alleges the following:

While housed at Folsom State Prison ("Folsom"), Plaintiff initiated a civil action against unspecified officials at that facility and at Tehachapi State Prison ("Tehachapi"). On November 7, 2006, Plaintiff received summons and complaints to be served on defendants at Folsom. (Compl. at 3.) On November 16, 2006 Lt. Moreno told Plaintiff that Warden Wadker and Captain Nies, along with other officials, had ordered Plaintiff transferred to Tehachapi. (Id. at 4.) V. Mclaughlin and L.N. Dovey made an off the record agreement to effectuate the transfer. "Plaintiff was not considered for transfer to Tehachapi SHU until the [summons and complaints materialized], thus the transfer resulted from Plaintiff engaging in a protected conduct by maintaining grievances and civil complaints." (Id.) The purpose of the transfer was to thwart service on the defendants of the civil action. (Id. at 5.) The transfer interfered with Plaintiff's prescribed medical treatment and violated regulations because Plaintiff was scheduled for a parole hearing in December. (Id. at 4.)

At Tehachapi M. Robinson recognized Plaintiff as having had an altercation with Officer Knutson in 2001. (Id. at 4.) Defendants Papillion, Robinson, Frazier, Long, and Cardenas then disseminated misinformation to inmates about Plaintiff committing prior acts of indecent exposure. (Id. at 5.) Being labeled as such by these Defendants created a hostile unsafe environment with regard to fellow inmates. (Id.)

"On December 15, 2006 the defendant L. Frazier incited and encouraged other prisoners to attack [Plaintiff] whenever possible by accusing [Plaintiff] under false pretext of exposing [himself] to her . . . ." L. Frazier "call[ed] out and announce[d] several times over the tier that [Plaintiff] was a rapist and in prison for raping women. Immediate threats of great bodily harm upon [Plaintiff] were made by various inmates . . . and set the stage for future violence." (Id.) Later that evening L. Frazier stated three times, loudly enough so as to garner a reaction from other inmates, that Plaintiff was a rapist. Plaintiff filed an administrative appeal alleging misconduct on the part of Defendants Frazier, Long, Uribe, and Montano. In retaliation for that appeal those Defendants falsely charged Plaintiff with a rules violation. As a consequence of the rules violation, Plaintiff was moved into an "ice box punishment cell freezing cold with no heat on December 29, 2006." (Id. at 6.)

Upon arrival at Tehachapi Robinson confiscated Plaintiff's orthopedic shoes and sent them to Property Officer Wenciker, who refused to return them. The shoes were never returned, "leaving [Plaintiff] in daily agony and pain." (Id. at 7.)

Defendants Heildt, B. Kearnes, and Allison confiscated Plaintiff's medically authorized knee brace in retaliation for administrative appeals filed by Plaintiff. (Id.)

On December 25, 2006 Defendant Emerson applied chemical agents to another black inmate in such quantities that Plaintiff also suffered exposure. Plaintiff was unable to get fresh air or take a shower to mitigate the effects. Plaintiff was left to choke and suffer chest pains along with breathing problems. (Id.) On December 27, 2006, Plaintiff was still experiencing chest pain and palpitations from the chemical agents. (Id. at 7, 8.) The following day Plaintiff filed an inmate grievance. (Id. at 7.) On December 29, 2006 Emerson and D. Martinez transferred all of the black prisoners who complained about the incident. While Plaintiff was collecting his property D. Martinez loudly and repeatedly identified Plaintiff as a rapist. Defendants Uribe, D. Martinez, Emerson, and Redenius made preparations for Plaintiff to be placed in a defective corner cell. It was snowing and temperatures were freezing, but the cell had no heat and the walls, ceiling, and floor stayed wet because of the unregulated temperature. Plaintiff notified Lieutenant Bryant, Sergeant Noyce, and Captain Steadman that the cell was unfit for human habitation; Plaintiff was left in the cell for one month. The cell placement was retaliation for Plaintiff filing grievances. (Id. at 8.)

On or about February 14, 2007 Defendants Carrasco and Gonsalez imposed a ten month Secure Housing Unit ("SHU") term in retaliation for Plaintiff exercising his right to file grievances. (Id. at 9.)

From November 16, 2006 to March 1, 2007, Defendants Peterson and R. Redenius denied Plaintiff law library access and destroyed the complaints and summons that Plaintiff intended to serve at Folsom. (Id. at 9.) Their actions were in retaliation for Plaintiff filing grievances.

Plaintiff was transferred from Tehachapi to Corcoran State Prison ("Corcoran") on March 1, 2007 by Defendants Gonzales, Lt. Ramos, and Sgt. Mayo in retaliation for Plaintiff exercising his right to file grievances. (Id. at 9, 10.)

Defendants W.L. Sullivan, Carrasco, Gonzales, T. Steadman, Bryant, Noyce, Wenciker, Redelsperger, Redenius, Peterson, and Robinson conspired to deprive Plaintiff of his property without due process. (Id. at 10.) Property Officer Wenciker is required to make a detailed account of each inmate's belongings. (Id. at 12.) When Wenciker catalogued Plaintiff's property, Plaintiff noticed that not everything was accounted for and so would not sign the property slip produced by Wenciker. (Id. at 13.) Plaintiff wrote to various prison officials including Wenciker. Defendant Wenciker responded to Plaintiff on January 19, 2007 informing Plaintiff that his property had been disposed of. Prison policy requires inmates to make arrangements for property not claimed on the property slip. (Id. at 12.) On January 17, 2007 Plaintiff had filed the necessary paperwork to claim his property. (Id. at 13.) The Defendants allege that the paperwork was not received until after the property was destroyed. (Id. at 14.)

On March 1, 2007 Plaintiff was informed that he was being transferred to another prison. Plaintiff asked Sgt. Doe to check Wenciker's property room for his missing belongings. Plaintiff's belongings were still there, but Lt. Bryant refused to allow Plaintiff to retrieve his property. (Id.) Plaintiff later received correspondence from M. Carrasco, F. Gonzales, W.J. Sullivan, Wenciker, T. Steadman, and M. Yarbarough regarding the property dispute. The Defendants made various false statements in an attempt to cover up the fact that the Defendants stole Plaintiff's property to sell for profit. (Id. 15, 16.)

Defendants C. Moats and John/Jane Does 1 through 7 had access to Plaintiff's financial accounts by virtue of their positions as Business Manager and trust accounting staff, respectively. These Defendants accessed Plaintiff's account after his March 1, 2007 transfer and created false debit charges in order to embezzle Plaintiff's money. (Id. at 21.)

Plaintiff asserts that the aforementioned conduct violated constitutional rights afforded to him under the First, Eighth, and Fourteenth Amendments. He also alleges violations of 18 U.S.C. ยง 1962 (Racketeer Influenced and Corrupt Organizations Act (RICO)) and makes a claim for ...


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