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Timothy Howard v. G. Gonzales

February 26, 2013

TIMOTHY HOWARD, PLAINTIFF,
v.
G. GONZALES,
DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS THIRTY-DAY DEADLINE

Plaintiff Timothy Howard ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on March 30, 2012. He names Correctional Officer G. Gonzales as the sole Defendant.

A. LEGAL STANDARD

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 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).

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, 129 S. Ct. 1937, 1949 (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 that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is incarcerated at California Corrections Institution, though the events at issue occurred while he was housed at California Substance Abuse Treatment Facility.

Plaintiff alleges that he submitted numerous appeals against Defendant Gonzales for unprofessional misconduct, retaliation and destruction of property by personally handing them to her. Defendant Gonzales failed to submit and/or destroyed the appeals.

On or about December 22, 2009, Plaintiff verbally informed Defendant Gonzales that he wasn't feeling well. He then collapsed and had a seizure in her presence. Plaintiff alleges that Defendant Gonzales denied him medical care and when he confronted her about it, she stated, "Fuck you, and I wished you would've died fucker for stabbing one of my partners in Corcoran." Compl. 6. When Plaintiff asked an unknown nurse about the matter, Plaintiff was informed that "custody said no treatment." Compl. 6.

Plaintiff submitted a 602 on December 22, 2009, to the Sergeant in Administrative Segregation. On December 29, 2009, Plaintiff was interviewed by Sergeant Zinani, Correctional Officer Langner and Defendant Gonzales. Plaintiff explained that he had submitted numerous appeals to Defendant Gonzales, but she failed to return the appeal as required.

On December 29, 2009, several correctional officers arrived at Plaintiff's cell, screaming and ordering him to submit to handcuffs. Plaintiff was taken to the Administrative Segregation Unit as punishment for filing appeals. To justify the punishment, Plaintiff was told that he threatened to kill Defendant Gonzales during the appeal interview. Plaintiff submitted an appeal on this issue on December 29, 2009.

On January 8, 2010, Plaintiff was issued a CDCR 115 Rules Violation Report for threatening a peace officer. The report was written by Defendant Gonzales. Plaintiff submitted a complaint to Internal Affairs, the Appeals Coordinator and Warden on January 8, 2010.

On February 6, 2010, Plaintiff had a hearing on the Rules Violation and was found not guilty. Plaintiff had submitted evidence of his prior appeals against Defendant Gonzales. Moreover, the witnesses who were present during the interview did not hear any of what Defendant Gonzales wrote in the report. The ...


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