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Deon Carroll v. California Department of Corrections and Rehabilitation ("Cdcr")

March 28, 2013

DEON CARROLL, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION ("CDCR"), ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

II. Procedural History

On January 16, 2013, this action was dismissed based on plaintiff's failure to timely provide an application to proceed in forma pauperis and a certified trust account statement for the six months prior to filing this action. On February 4, 2013, plaintiff filed a motion for reconsideration, for an extension of time, and for appointment of counsel. On February 20, 2013, plaintiff filed a complete application to proceed in forma pauperis, and a second motion for reconsideration and request for appointment of counsel.

Good cause appearing, plaintiff's motions for reconsideration are granted. The January 16, 2003 order and judgment are vacated. Plaintiff's motion for extension of time is moot in light of this order. The court will address plaintiff's motion for appointment of counsel after ruling on plaintiff's request to proceed in forma pauperis, and screening plaintiff's complaint.

III. Request to Proceed In Forma Pauperis

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

IV. Screening

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

Although plaintiff's complaint is only seven pages long, plaintiff names seventeen defendants, many of whom are wardens at different state prisons, and raises claims encompassing four federal venues. The alleged incidents occurred from September of 2009 through March of 2012, at six different state prisons. Plaintiff's claims range from alleged "manufactured" rules violations reports, sexual assault and abuse, forced medication without court order, deprivation of privileges, verbal threats, etc., including vague allegations concerning the "Green Wall." Plaintiff alleges that because he reported "being a victim of sexual/physical abuse by CDCR/CCPOA/DMH 'Green Wall' staff, [he has] been repeatedly retaliated against." (Dkt. No. 1 at 3.) Plaintiff claims he's "been passed around by CDCR Green Wall staff like [he is] an AbuGraib [sic] sex slave." (Id.)

Plaintiff initially challenges the alleged misconduct of correctional officers at California State Prison-Sacramento ("CSP-SAC"), claiming he reported all the incidents to CSPSAC Warden Tim Virga. Plaintiff then claims he was forcibly medicated by CDCR/DMH/CMF staff, apparently at California Medical Facility in Vacaville ("CMF"). Plaintiff then alleges he sustained a manufactured rules violation while held at California State Prison-Corcoran ("CSPCOR") In 2012, plaintiff alleged he was threatened while housed at RJ Donovan Prison in San Diego ("RJD"), and was intentionally housed with a known rapist who attacked plaintiff. Plaintiff states he reported this incident to RJD Warden Paramo. In August 2011, plaintiff was taken to Deuel Vocation Institute in Tracy ("DVI"), where he claims he was sexually assaulted again. On August 20, 2011, plaintiff was taken to San Joaquin Hospital, where he was allegedly refused the right to talk to a lawyer or have a sexual assault victim advocate present during exam. Plaintiff reported this incident to the DVI Warden.

On March 27, 2012, plaintiff claims he was taken to "Supp/DMH/Green Wall Headquarters," where he alleges he was deprived of privileges, victimized by employee sexual misconduct, denied seizure medications, physically assaulted by defendant Houston, forcibly medicated in retaliation for reporting sexual misconduct, threatened with death, and that plaintiff would be tortured until plaintiff killed himself, or they would hang him to make it look like suicide because plaintiff reported defendant Houston. Finally, plaintiff claims defendant Houston verbally threatened plaintiff. Plaintiff states these claims were reported to Warden Hedgpeth and the Department of Mental Health ("DMH") supervisor. Because defendant Hedgpeth is Warden at Salinas Valley State Prison, in Soledad ("SVSP"), it appears plaintiff was housed at SVSP during these incidents.

Thus, the complaint details wide-ranging instances of allegedly unconstitutional conduct, pursuant to the First, Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks money damages, and asks the court to compel the CDCR and DMH to turn over all incident reports and medical records so plaintiff can name all staff. Plaintiff seeks a court order requiring the CDCR to house plaintiff anywhere except "CDCR 'Green Wall' strongholds: CSP-SAC, CSP-COR, RJD, SVSP, ...


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