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Moore v. Gipson

United States District Court, E.D. California

December 8, 2014

MERRICK JOSE MOORE, Plaintiff,
v.
CONNIE GIPSON, et al., Defendants

Merrick Jose Moore, Plaintiff, Pro se, Susanville, CA.

SCREENING ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND (ECF No. 1) THIRTY-DAY DEADLINE

Barbara A. McAuliffe, UNITED STATES MAGISTRATE JUDGE.

I. Screening Requirement and Standard

Plaintiff Merrick Jose Moore (" Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint, filed on November 12, 2013, is currently before the Court for screening.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)). While a plaintiff's allegations are taken as true, 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).

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). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Allegations

Plaintiff is currently incarcerated at High Desert State Prison. The events alleged in the complaint occurred while Plaintiff was housed at Corcoran State Prison. Plaintiff names the following defendants: (1) Connie Gipson, Warden; (2) J. Cavazos, Chief Deputy Warden; (3) R. L. Davis, Appeal Examiner; (4) J. D. Lozano, Chief, Office of Appeals; (5) Karen Cribbs, SSA; (6) E. Henery, Appeals Coordinator; (7) A. Casas, Correctional Officer; (8) J. Gonzalez, Correctional Sergeant; (9) R. Southard, Correctional Officer; (10) S. Longoria, Correctional Officer; (11) A. De La Cruz, Correctional Officer; (12) M. Bertram, Licensed Vocational Nurse; (13) C. Marquez, Supervising Registered Nurse; (14) K. Weatherford, Correctional Lieutenant; (15) R. Miles, Correctional Sergeant; (16) L. Cahlander, Correctional Sergeant; (17) R. Zamora, Correctional Officer; (18) C. Love, Security Unit Correctional Sergeant; (19) D. Woodward, Investigative Security Unit; (20) M. Geston, ISU; (21) D. Grimsley, ISU; (22) H. Lazano, CO; (23) J. Torres, Correctional Counselor; (24) D. Ryder, CC II; (25) R. Perez, CO; (26) J. Arnett, CO; (27) R. Juarez, Lt.; (28) L. Ford, CO; (29) T. Marsh, Lt.; (30) A. Cruz, Lt.; (31) D. Thornburg, Sgt.; (32) M. T. Cisneros, Capt.; (33) G. Meire, CO; (34) S. Childress, CO; (35) T. Adams, CO; (36) A. Scaffe, CO; (37) M. Solis, Sgt; (38) T. Perez, COW; (39) M. Jennings, AW; (40) Critchlow, CC II; (41) M. Gamboa; (42) W. Rasley; and (43) D. L. Azevedo, Corrections Counselor.

Plaintiff alleges as follows: On January 9, 2012, Defendant Southard took an adverse action against Plaintiff by confiscating Plaintiff's yard and other recreational activities and falsified documentation against Plaintiff because of grievances that Plaintiff filed.

On February 16, 2012, Defendant J. Gonzalez conspired to cover up the misconduct of his subordinates. After being provided with clear evidence of retaliation and falsification of documents, Defendant J. Gonzalez failed to remedy the wrong.

On March 26, 2012, Defendant Bertram was notified of chest and back pain, but refused to provide any medical attention. The following day, Defendant Bertram was notified of the pain, but stated that she was tired of inmates whining. Plaintiff notified staff and staff notified Defendant Bertram's supervisor. About a half hour later, Defendant Bertram returned with Defendant De La Cruz. Plaintiff was called out of his cell. Defendant De La Cruz forcefully grabbed Plaintiff, forcefully pushed him down in the chair and used abusive language. Defendant De La Cruz and his partner, A. Guizar, began to high five each other and taunt Plaintiff. They stated, " Make sure you spell my name right when you file your 602." (ECF No. 1, p. 5.) Defendant De La Cruz's supervisor, Defendant Weatherford, was notified on March 27, 2012, and again on May 14, 2012.

On May 28, 2012, Defendant Southard retaliated against Plaintiff for a previously filed grievance by falsely claiming that Plaintiff was out of bounds and authoring a chrono. Defendant J. Gonzalez was made aware of the misconduct.

On July 11, 2012, Defendant J. Gonzalez conspired to cover up the retaliation of Defendant Southard by illegally cancelling Plaintiff's grievance. Defendant J. Gonzalez then conspired with Defendants Casas and Henry by refusing to allow attachments to Plaintiff's grievance and then falsely claiming that Plaintiff refused to be interviewed.

On July 13, 2012, Plaintiff filed a grievance against Defendant J. Torres for retaliation and for refusing to allow an Olsen review before a deposition.

On July 29, 2012, while waiting to attend a religious service, Defendant R. Zamaro sexually groped Plaintiff by rubbing his genital against Plaintiff's buttocks while moaning. Plaintiff immediately protested and asked Defendant's Supervisor, K. Weatherford, why he allowed his subordinate to violate me in such a manner. Defendant Weatherford laughed and said to write it up. Plaintiff sent a letter to the Warden. Plaintiff alleges that Correctional Officer R. Perez witnessed the incident and failed to report the misconduct. Sergeant Miles was informed and also failed to report the misconduct.

On July 31, 2012, Investigative Service Unit (" ISU") Officers D. Woodward and M. Beston summoned Plaintiff to the program office and then proceeded to threaten him with retaliation, cell searches, validation and property.

On August 1, 2012, Plaintiff was instructed to report to work exchange and upon arriving Defendant Woodward was waiting. Plaintiff was taken to an interview room where two internal affairs officers interviewed him. While this was going on, Defendant Woodward ransacked Plaintiff's cell and broke his CD player in retaliation. After the cell search, Defendants Woodward, Brimsley and Torres stood around. Defendant Woodward told Defendant Brimsley that he messed with the wrong one and then high-fived Defendant Brimsley and Casas.

On October 11, 2012, Sergeant C. Love conducted an interview with Plaintiff concerning the conduct of officers responsible for the misconduct and covered it up.

On June 4, 2012, an institutional grievance was filed against Sergeant R. Miles. Retaliations, reprisals and retribution were the reasons and the continued refusal from Defendants Miles and Weatherford to allow Plaintiff to attend his religious services. In retaliation, Defendant J. Gonzalez denied Plaintiff's grievance.

On October 12, 2012, Defendant J. Gonzalez was written up for unprofessional conduct, terrorist threats and harassment. Defendant Gonzalez and his subordinates took Plaintiff's religious headgear and tossed it on the ground. At that time, Correctional Officers Lazano, Longoria, Flores, Chalander, and Arnett surrounded Plaintiff menacingly stating " what you gonna do." (ECF No. 1, p. 7.) As Plaintiff left, Defendant Gonzalez yelled, " [H]ey Moore when your mommy call tell her to suck my dick." (ECF No. 1, p. 6.) Defendants Woodward, Brimsley and Beston searched Plaintiff's cell, confiscated his personal property and tried to validate him.

On February 28, 2013, Plaintiff wrote a grievance on the excessive use of force by Correctional Officers Meier, Casas, Childress, and Adams, along with fabrication of documents by L. Ford. On February 15, 2013, Defendant Ford retaliated by claiming that Plaintiff indecently exposed himself. As a result, four correctional staff entered the housing unit, ran up to Plaintiff's cell, and opened the door. Defendant Meier snatched Plaintiff out of the cell and slammed him on the top tier rail. Defendant Casas jumped on Plaintiff's back while Defendant Childress bent Plaintiff's arm behind him. Defendant Ford then yelled, " [B]eat his ass." (ECF No. 1, p. 7.) Supervisor D. Thornburg witnessed the entire incident and ordered staff to take Plaintiff outside. As they entered the rotunda, Defendants Adams and Childress slammed Plaintiff face first into the wall and started punching him in the ribs. Plaintiff was taken to the program office and then to the hospital.

On April 19, 2013, Lieutenant Cruz denied Plaintiff due process when he and Correctional Officers A. Scaife, D. Perez, and J. Arnett falsified disciplinary reports and denied Plaintiff the right to call witnesses. Plaintiff alleges that this was in retaliation to grievances filed against Lieutenant Cruz's staff.

On May 14, 2013, Plaintiff was finally given a log number for his property that staff lost on February 15, 2013, in retaliation and reprisals for the grievance written on February 28, 2013 against staff for use of excessive force and fabrication of documents.

On May 30, 2013, Correctional Counselor C. Critchlow, Chief Deputy Warden M. Jennings, Captain M. Gamboa and Sergeant W. Rasley retaliated, fabricated and denied Plaintiff due process. Despite evidence of Plaintiff's innocence, these persons refused to correct the action taken against Plaintiff by the false disciplinary report written on February 15, 2013, loss of property and loss of credit. Plaintiff was put up for transfers and when notified of all the criminal acts taken against Plaintiff none of these persons corrected or remedied the situation. They knew of the situation through letters, grievances, and requests for interviews, but decided to obstruct the process by disposing of documents or hold them until the time for grievances elapses. Plaintiff alleges these are retaliatory actions.

On June 12, 2013, Plaintiff was interviewed by Sergeant W. Rasley concerning a grievance on the disposal of Plaintiff's legal and personal property. Sergeant Rasley became infuriated and conspired to cover up the retaliation by fabricating his findings. Based on his conduct, Plaintiff sent a request for interview to Sergeant Rasley's supervisor, Lieutenant T. Marsh. Plaintiff alleges that Lieutenant Marsh allowed his subordinates to engage in retaliatory acts against inmates who utilized the appeal process.

On June 20, 2013, Plaintiff was sitting in his cell when Correctional Officer L. Ford, accompanied by Sgt. Rasley, approached the door and began to threaten Plaintiff with the issuance of a disciplinary rules violation report in retaliation for filing a grievance against them. Instead of discouraging the conduct of his subordinate, Sgt. Rasley encouraged, supported and participated in the intimidation and threats.

On June 22, 2013, two days after the threats, Correctional Officer R. Childress worked in the building where Plaintiff was housed and stated that Plaintiff " fucked up filing the grievance against him and his colleagues, " referring to those officers responsible for the February 15, 2013 assault. Plaintiff alleges that A. Cases, G. Meier, T. L. Adams, and R. Childress used excessive force at the behest of Ford and Sergeant Thornburg. They ordered the perpetrators to take him outside, which caused the assault of Plaintiff in the rotunda area. On June 23, 2013, A. Casas and Adams leveled the same threats.

On June 28, 2013, Supervisors Rasley and Marsh had Plaintiff in a holding cage. They told Plaintiff that due to his continued grievance filing, he would never see his property again. In response, Plaintiff submitted an institutional CDCR 22 form to the appeals coordinator with an explanation of events. ...


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