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Nestor Hernandez v. Olmos

April 24, 2013


The opinion of the court was delivered by: Ralph R. Beistline United States District Judge


Nestor Hernandez, a state prisoner appearing pro se and in forma pauperis, filed a civil rights action under 42 U.S.C. § 1983, against correctional officers and officials of the California Department of Corrections and Rehabilitation. Hernandez's Complaint arises out of events that occurred while Hernandez was incarcerated at the California State Prison, Tehachapi. After the Complaint was filed in this matter, Hernandez was transferred to the North Kern State Prison.*fn1


This Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.*fn2 This Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief."*fn3 Likewise, a prisoner must exhaust all administrative remedies as may be available,*fn4 irrespective of whether those administrative remedies provide for monetary relief.*fn5

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn6 "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."*fn7 Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal should be granted only where it appears beyond doubt that the plaintiff can plead no facts in support of his claim that would entitle him or her to relief.*fn8

Section 1983 suits do not support vicarious liability, a plaintiff must demonstrate that each defendant personally participated in the deprivation of his or her rights.*fn9 This requires the presentation of factual allegations sufficient to state a plausible claim for relief.*fn10 "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'"*fn11 Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true.*fn12

"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."*fn13


According to Hernandez, when he attempted to file CDC Form 602 grievances against Correctional Officers Olmos and Acosta they destroyed grievances, precluding processing, and allegedly threatened his life. Hernandez further alleges that K. Sampson and M. Nipper erroneously rejected CDC 602's because they were written in pencil instead of pen. Daux, the Law Librarian, refused to provide Hernandez a pen so that he could complete his CDC 602 Forms. Hernandez seeks injunctive relief enjoining the alleged threats against his life and damages.


Hernandez has pending in this district Hernandez v. Olmos, 1:10-cv-01495-LJO-DLB, a civil rights action under 42 U.S.C. § 1983 in which he alleges that Correctional Officers Olmos, Acosta, and Clinerd violated his civil rights in that they (1) regularly denied him showers and (2) deprived him of his full meals.*fn14 That action arises out of the matters that were the subject of the CDC 602 grievances that he alleges were improperly destroyed or denied in this action.

Because Hernandez has been transferred from Tehachapi to North Kern County Prison, his injunctive relief claim has become moot. The fact that his CDC 602 grievances were not processed presents a somewhat different picture.

As noted above, exhaustion of administrative remedies is a mandatory prerequisite to bringing a civil rights action under § 1983.*fn15 Thus, unless Hernandez has properly exhausted his administrative remedies, his pending civil rights action, 1:11-cv-01495, is subject to dismissal. That is the "injury" that Hernandez would suffer as a result of the actions of Defendants in this case. That does not, however, necessarily support granting relief in this case. If, in fact, prison officials affirmatively interfered with and prevented Hernandez from exhausting his administrative remedies, exhaustion may be excused.*fn16 The appropriate remedy in this case is for Hernandez to raise the actions of the Defendants as a counter to any claim by the Defendants in 1:10-cv-01495 that Hernandez has failed to exhaust his administrative remedies, not an independent action. In the event Hernandez prevails in that case, he will have suffered no harm. On the other hand, if Hernandez fails to establish that Defendants interfered with his ability to exhaust his administrative remedies, he would also fail to ...

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