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Wayne Chick v. B. A. Lacey

April 20, 2013

WAYNE CHICK, PLAINTIFF,
v.
B. A. LACEY, ET AL.,
DEFENDANTS.



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

ORDER FINDING CERTAIN CLAIMS COGNIZABLE AND DISMISSING REMAINING CLAIMS AND DEFENDANTS

Plaintiff Wayne Chick ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on August 29, 2011. Pursuant to Court order, he filed a First Amended Complaint on October 9, 2012. He names Sierra Conservation Center Correctional Officers B.A. Lacey and D. Wattle, Sgt. Tweedy, J. Kavanaugh, Associate Warden R. Quinn, Chief Deputy Warden Lackner and Inmate Appeals Chief D. Foston as Defendants.*fn1

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.

To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; 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, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

On September 6, 2010, while Plaintiff was at dinner, Defendant Lacey conducted a cell search and left a "complete mess." Compl. 3. When Plaintiff returned from dinner, Defendant Lacey told him told him to gather all of his property and take it down to the podium. Plaintiff did and Defendant Lacey told him that he knew why Plaintiff was in prison and that he was going to get rid of all of his trash.

On September 7, 2010, Plaintiff heard Defendant Lacey tell other inmates that he was going to trash Plaintiff's cell and take his stuff. That day, Defendant Lacey went to his cell and made Plaintiff take all of his property to the podium. Defendant Lacey again disposed of pieces of Plaintiff's property, calling it trash and/or contraband.

On September 9, 2010, Plaintiff spoke to Sgt. Mutty about the harassment and threats from correctional officers, and Mutty told him that he would speak to Defendant Lacey about the issue. Later that day, Defendants Lacey and Wattle made Plaintiff and his cell mate take their property to the podium. They again disposed of personal property and told Plaintiff, in a loud and mean manner, that he was "a mentally ill dirty individual" and that he'd be going through the same search tomorrow. Plaintiff became humiliated and was unable to sleep.

On September 10, 2012, Defendant Lacey had Plaintiff take his property to the middle of the dayroom, where all inmates could see it. He searched Plaintiff's property and disposed of whatever he saw fit, despite Plaintiff's pleading and documented receipts. Defendant Lacey was also allowing other inmates who work in the building to take what they wanted from Plaintiff's property. That evening, Plaintiff was not allowed to shower and was sent back to his cell without a toothbrush or toothpaste. He was not able to sleep due to fear.

During these searches, Defendant Lacey was slowing getting rid of Plaintiff's legal documents. This caused Plaintiff to have a psychological breakdown and miss his court deadlines.

On September 11, 2010, Defendants Lacey and Wattle asked Plaintiff to remove his property from the room where it was placed the day before and take it to the podium. While Plaintiff was doing this, Defendants Lacey and Wattle were making fun of Plaintiff and yelling derogatory names in the presence of other inmates. During this search, Defendants disposed of Plaintiff's top and bottom dentures and religious artifacts.

On September 13, 2010, Defendant Lacey yelled at Plaintiff while he was in his cell and told him to bring his property down. The search was conducted in the same manner as previous ...


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