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McKenzie v. Banuelos

United States District Court, E.D. California

February 6, 2015

GUSTAVO McKENZIE, Plaintiff,
v.
E. BANUELOS, et al., Defendants.

ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZALBE CLAIM (ECF NO. 9.) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

MICHAEL J. SENG, Magistrate Judge.

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Gustavo McKenzie is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 5.) Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 6.)

On August 12, 2013, Plaintiff filed his complaint. (ECF No. 1.) On September 16, 2013, without having screened the complaint, the Court granted Plaintiff leave to file an amended complaint. (ECF No. 8.) Plaintiff filed his First Amended Complaint on October 7, 2013. (ECF No. 9.) It is now before the Court for screening.

II. SCREENING REQUIREMENT

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, malicious, " or 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 on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

III. SUMMARY OF COMPLAINT

Plaintiff identifies correctional officers: E. Banuelos, L. Gallardo, G. Stoll, D.B. Hernandez, and Mr. Charlet; and Appeals Coordinators: S. Harrison, N. Parra, and Karen Cribbs as defendants. Plaintiff alleges that Defendants Banuelos, Gallardo, Stoll, Hernandez, and Charlet deprived him of his property without due process and Defendants Banuelos, Hernandez, Harrison, Parra and Cribbs retaliated against him for filing grievances.

Plaintiff's allegations can be summarized essentially as follows:

In April 2012, Plaintiff was transferred from California State Prison - Los Angeles County ("CSP-LAC") to the Segregated Housing Unit at California State Prison - Corcoran ("CSP-Corcoran"). Once at CSP-Corcoran, Plaintiff reviewed the CDCR-1083 Forms, which list an inmate's property, and noticed that the form from CSP-Corcoran did not reflect all of his property, including his typewriter ribbons, cervical pillow, and photos.

Between April and June 2012, Defendants Gallardo, Stoll, and Charlet all brought Plaintiff his tennis shoes and beanie on separate occasions, but refused to provide them to him after he complained that he was not in receipt of all of his allowable property (such as his books, magazines, sweatshirt, glasses, and cervical pillow) and that the Form 1083 failed to reflect all of his property.

Defendants Banuelos, Gallardo, Stoll, Hernandez, and Charlet failed to locate his missing property, which resulted in it being destroyed (including books, magazines, a CD and CD player, headphones, AC Adapter, cable splitter, tumblers, glasses, clothes, tennis shoes, beanie, deodorant, color pencils, typewriter and ribbon, and photos).

Plaintiff filed interview and grievance forms regarding his property; on many he never received responses. However, the following Defendants retaliated ...


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