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Dondre Pearson v. H. Tyson

February 8, 2013

DONDRE PEARSON,
PLAINTIFF,
v.
H. TYSON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Stanley A. Boone United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1)

ORDER DENYING PLAINTIFF'S MOTION FOR SERVICE AS PREMATURE (ECF No. 7)

THIRTY-DAY DEADLINE

I.

SCREENING REQUIREMENT

Plaintiff Dondre Pearson is a state prisoner appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's complaint, filed February 23, 2012, and a motion for service, filed March 26, 2012. (ECF Nos. 1, 7.)

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.

II.

COMPLAINT ALLEGATIONS

Plaintiff, who is paralyzed and wheelchair bound, is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Kern Valley State Prison. Plaintiff brings this action against Correctional Lieutenant H. Tyson, Correctional Counselor II O. Smith, Associate Warden R. Grissom, and Chief Deputy Warden D. G. Adams alleged deliberate indifference to his conditions of confinement and violations of due process because he has not been assigned to single cell status. (Compl. §§ 8-11, 33, 36.)

Plaintiff states that on September 1, 2008, he was the victim of an attempted rape by his cell mate. (Id. at § 14.) On August 25, 2010, Plaintiff was beaten and nearly raped by his cell mate. (Id. at § 17.) On May 5, 2011, Plaintiff informed Dr. Stahl that his cell mate was pressing him to engage in homosexual activities and was taking Plaintiff's property whenever he felt like it. This information was relayed to Housing Officer Campbell; and Plaintiff requested to be placed on single cell status. (Id. at § 19.)

Plaintiff filed an administrative appeal on May 5, 2011, requesting to be placed on single cell status and advised Defendant Tyson thought the mail system of what had taken place. Defendant Tyson failed to respond to Plaintiff. (Id. at §§ 20, 21.) Plaintiff pursued his administrative grievance through the directors level to no avail. (Id. at § 22.) Plaintiff alleges that Defendants are recklessly indifferent by housing inmates to handicapped cells with a handicapped individual and he has suffered from nightmares, nightsweats, ...


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