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Edward Vasquez v. Merced County S.E.R.T. Team

February 14, 2013

EDWARD VASQUEZ,
PLAINTIFF,
v.
MERCED COUNTY S.E.R.T. TEAM, 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 DAYS FIRST SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Edward Vasquez, a state prisoner proceeding pro se, filed this civil rights action on February 1, 2013 pursuant to 42 U.S.C. § 1983. (Compl., 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

Plaintiff was incarcerated at the County of Merced Correctional Facility, John LaTorraca Correctional Center ("JLCC"), apparently as a pre-trial detainee.

He was entering his dorm on September 28, 2012, following a search of the dorm by the S.E.R.T. Team, when an inmate shattered a 90 sq. ft. window with a broom handle. The S.E.R.T. Team re-entered the dorm shooting 12 gauge block guns and paint ball guns and throwing percussion grenades. Plaintiff went down on the ground. He was struck on the head and arm by grenades. He convulsed, fell unconscious and stopped breathing for a time. He was transported to the Modesto Trauma Center where he received eight staples in his head. He has continued to suffer hearing complications, headaches and dizziness as a result of the trauma.

Plaintiff names as Defendants (1) the Merced County S.E.R.T. Team, (2) the Merced County JLCC, (3) Correctional Officer Vagerra, (4) Correctional Officer Rios, (5) Classification Correctional Officer Lacey, (6) Sgt. Salacup, (7) Correctional Officer Armenta, (8) Correctional Officer Aretga, (9) Correctional Officer Williams, (10) Correctional Officer Tilly, (11) Correctional Officer Hendon, (12) Correctional Officer Penia, (13) Correctional Officers Abriams, (14) Correctional Officer Lyconfilter, (15) Sgt. Lopez, (16) Correctional Officer Carillo.

Plaintiff seeks as relief that "[JLCC] Correctional Officers/S.E.R.T. Team take in consideration that inmates at JLCC are pre-detainee awaiting court and should not be targeted as they are, leave this open for unlimited civil claim." (Compl. at § V.)

IV. ANALYSIS

A. Pleading Requirements ...


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