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Armstrong v. Pelayo

United States District Court, E.D. California

October 9, 2014

BRADY K. ARMSTRONG, Plaintiff,
v.
D. PELAYO, Defendant.

FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON RETALIATION CLAIM AND OTHER CLAIMS BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 36)

SHEILA K. OBERTO, Magistrate Judge.

I. Background

Plaintiff Brady K. Armstrong, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 8, 2013.[1] On February 12, 2014, the Honorable Anthony W. Ishii, Senior District Judge, dismissed Plaintiff's improperly joined claims and referred the matter back to the undersigned to screen Plaintiff's claims against Defendant Pelayo. Fed.R.Civ.P. 18(a); 28 U.S.C. § 1915A. On February 14, 2014, the undersigned dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim. 28 U.S.C. § 1915A.

II. Screening Requirement and Standard

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences, " Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of 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). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

III. Discussion

A. Plaintiff's Allegations[2]

Plaintiff, who was incarcerated at California Substance Abuse Treatment Facility and State Prison in Corcoran, California, during the events at issue, brings this action against Correctional Officer D. Pelayo for violating his rights in 2012. Plaintiff alleges claims for violation of the First and Eighth Amendments arising out of incidents occurring between February 13, 2012, and October 4, 2012. Plaintiff also appears to be alleging a claim for violation of the Americans with Disabilities Act.

On February 13, 2012, Plaintiff filed an inmate appeal regarding Defendant Pelayo's interference with his ADA shower accommodation/modification. Plaintiff alleges that as a result of suffering several strokes, he urinates and defecates on himself, requiring a shower, and he suffers from severely painful mobility impairments, requiring the use of a wheelchair.[3] Plaintiff alleges that when Defendant Pelayo denied him a shower to clean up, it caused violent confrontations between Plaintiff and his cellmate. Plaintiff also alleges that on several occasions, Defendant Pelayo attempted to have Plaintiff's cellmate assault or harm Plaintiff because he filed appeals against Defendant.

On March 30, 2012, Defendant Pelayo issued Plaintiff a CDCR 115 Serious Rules Violation Report. Defendant Pelayo had asked Plaintiff to provide a medical shower chrono and when Plaintiff complied, Defendant said the chrono was a fake, resulting in the disciplinary write-up. Plaintiff alleges that a lieutenant had clearly informed Plaintiff he had a medical shower chrono approved by medical staff and the custody lieutenant.

On April 20, 2012, Defendant Pelayo again interfered with Plaintiff's medical chrono by refusing to honor the chrono, in retaliation against him.

On October 4, 2012, Plaintiff's lower back was going out on him and he could not support his legs with his weight. Defendant Pelayo had been arguing with Plaintiff regarding his submission of inmate appeal number SATF-C-12-01268, which concerned Defendant's interference with Plaintiff's blood sugar testing and insulin injections for his diabetes. Defendant Pelayo approached Plaintiff's cell door and ordered Plaintiff to "strip out" if he wanted to go to the medical clinic for his diabetes treatment. (Amend. Comp., p. 4 lns. 1-4.) Plaintiff complied and stripped out of his clothing while in his wheelchair. Defendant Pelayo then ordered Plaintiff to stand up, and squat and ...


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