The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS ECF Nos. 1, 10, 14 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Plaintiff Marcus R. Williams ("Plaintiff") is a prisoner in the custody of the California
Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On February 17, 2012, Plaintiff filed his complaint. ECF No. 1. On October 15, 2012, the Court screened Plaintiff's complaint and found that it stated cognizable claims for relief against Defendants Rios, S. Stewart, M. Stewart, Jayvinder, Biter, Page, Cabrera, and Harrington for violation of the Eighth Amendment. Plaintiff was provided the opportunity to either file an amended complaint or notify the Court of his willingness to proceed only on the cognizable claims. ECF No. 10. On January 11, 2013, Plaintiff notified the Court of his willingness to proceed only on the claims found to be cognizable. The undersigned issues the following Findings and Recommendations.
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 2 "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2). 4
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 5 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 6 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 7
A complaint must contain "a short and plain statement of the claim showing that the pleader 8 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 9
"[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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff was incarcerated at Kern Valley State Prison ("PVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants acting warden Kelly Harrington, chief deputy warden M. D. Biter, associate warden T. Arlitz, captain M. Cabrera, captain D. Page, lieutenant M. Stewart, sergeants D. Steen, W. Epperson, and Crother, correctional officers S. Rios, S. Stewart, D. Bradshaw, and Clark, appeal coordinator D. Tarnoff, and licensed vocational nurse D. Jayvinder.*fn1
Plaintiff alleges the following.
A. Issue One -- Modified Programs/Lockdown
Plaintiff is 41 years old and of African American descent, alleged to be a member of the Crips gang out of San Diego, California. Compl. ¶ 2. Plaintiff was first housed at KVSP A facility on June 29, 2009. Compl. ¶ 3. Plaintiff appeared before the initial classification committee on July 2, 2009. Compl. ¶ 3. Plaintiff was not advised of any security measures or factors which would restrict his access to full program. Compl. ¶6.
On July 2, 2009, Plaintiff was cleared for access to full program and equal access to all 2 available services and activities. Compl. ¶ 7. This included limited access to yard, phones, canteen, 3 visits, packages, law library, and religion services. Compl. ¶ 11. Plaintiff was assigned to a A-1-A 4 work group. Compl. ¶ 15. 5
On October 1, 2009, after being subject to several weeks of lockdowns resulting in 6 suspension or termination of access to services, Plaintiff filed a form 602 inmate appeal regarding 7
Defendants Cabrera and Harrington's failure to provide Plaintiff with proper notice of any program 8 changes by program status report ("PSR"), or notice as to the specifics requiring program status 9 change. Compl. ¶ 29. Plaintiff was denied preapproved visits with his family and friends on August 29 and 30, September 5 and 6, and September 26 and 27 of 2009 without notice. Compl. ¶ 32. Defendants Steen and Arlitz reviewed the inmate appeal and granted it. Compl. ¶ 33. Defendants Cabrera, Harrington, Steen, and Arlitz acted in concert to subject Plaintiff to extended and excessive lockdowns. Compl. ¶ 34.
The deprivations of outdoor exercise occurred as follows: August 3, 2009 through August 23, 2009; August 23, 2009 through September 15, 2009; September 18, 2009 through October 5, 2009; November 12, 2009 through November 30, 2009; February 11, 2010 through February 22, 2010; February yard cancelled without notice on 19 days; March 2010 yard cancelled without notice on 15 days; April 9, 2010 through May 23, 2010; May 25, 2010 through June 7, 2010; June 2010 yard cancelled without notice on 10 days; July 2010 yard cancelled on 17 days; August 2010 yard cancelled without notice on 10 days; September 2010 yard cancelled without notice on 4 days; and September 10, 2010 through October 25, 2010. Compl. ¶ 121.
Plaintiff complained that Defendants need to identify the emergency justifying suspension or cancellation of programs, services, and activities. Compl. ¶ 123. The appeal was granted in part in that PSRs should be issued, and that Plaintiff had already obtained the PSR through the law library. Compl. ¶ 123.
B. Issue Two -- Cell Searches/Property/Excessive Force
Prior to the incident, Plaintiff had filed numerous legal cases, and several inmate appeals regarding deprivations and unsafe prison conditions, with respect to lack of adequate outdoor exercise, access to law library, adequate cleaning supplies, lost legal mail, and denial of visitation. 2
Compl. ¶ 68. Plaintiff was subject to several arbitrary cell searches. Compl. ¶ 69. Plaintiff's cell 3 was searched six times between September 10, 2010 and October 26, 2010. Compl. ¶ 71. 4
On October 26, 2010, Plaintiff's cell was searched. Compl. ¶ 37. Defendant lieutenant M. Stewart arrived at Plaintiff's cell on October 26, 2010, and ordered Plaintiff to cuff up for a cell 6 search. Compl. ¶ 73. 7 Defendants S. Stewart, Bradshaw, and Rios, correctional officers, placed Plaintiff and his cell
8 mate in mechanical restraints and locked them in the single man shower stall while the search was 9 conducted. Compl. ¶ 37. Defendants S. Stewart and Rios searched the cell for contraband and unauthorized property. Compl. ¶ 37. ...