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McKenzie v. Banuelos

United States District Court, E.D. California

March 11, 2015

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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

DENNIS L. BECK, Magistrate Judge.

Plaintiff Gustavo McKenzie ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 25, 2014. He names Correctional Officers E. Banuelos, L. Gallardo, G. Stoll, and Charlet, Correctional Sergeant D. B. Hernandez, and Appeal Coordinators S. Harrison and Karen Cribbs as Defendants.

A. 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 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.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is currently housed at Pleasant Valley State Prison; however, he was housed at California State Prison ("CSP"), Corcoran, in the Security Housing Unit ("SHU") at Facility A, when the events giving rise to this action took place.

Plaintiff alleges the following. In 2011, Plaintiff was housed at Lancaster State Prison. On December 29, 2011, he was placed in the Administrative Segregation Unit ("Ad Seg"). As a result of his placement in Ad Seg, his personal property was taken from him and inventoried by Correctional Officer A. Lois.

On April 20, 2012, Plaintiff was transferred to CSP and housed in the SHU. On April 20, 2012, he was moved to another cell in the SHU. On April 23, 2012, he was temporarily placed in Ad Seg pending approval of another cell move. On April 24, 2012, he returned from the Ad Seg yard to his cell to find 8 paper bags containing his personal property which consisted of legal documents, 3 law books, 1 dictionary, and 18 soup containers. Plaintiff asked to speak to a property officer, and Officer Yale responded. Yale advised him that his tennis shoes, beanie, sweatshirt, cervical pillow, etc., were not allowed in Ad Seg. Yale gave Plaintiff a copy of the SHU's inventory list and left.

Later that day, Plaintiff was taken back to the SHU. After he unpacked, he compared his original inventory list from Lancaster with the SHU inventory list he received from Officer Yale. He noticed that the SHU inventory list did not contain certain items that were on the Lancaster list, such as typewriter ribbons, cervical pillow, and photos.

On April 25, 2012, Defendant Gallardo came to the cell with a paper bag containing Plaintiff's tennis shoes and beanie. Plaintiff asked her where the rest of his property was, and she advised that it was in Ad Seg. Plaintiff responded that he was not in Ad Seg, but assigned to the SHU, and he did not have all of his allowable property. He also advised that the inventory list did not reflect all of the items on the prior inventory list. Defendant Gallardo became flustered and stated, "I am not a regular, " and she walked off carrying his tennis shoes and beanie. Plaintiff wrote a grievance based on the incident, but the grievance disappeared.

On May 7, 2012, Defendant Stoll came to the cell with the paper bag containing shoes and beanie. Plaintiff showed Stoll the discrepancies in the two inventory lists. Defendant Stoll stated, "I don't inventory this shit - I pass it out." Plaintiff then advised Stoll that there were other articles of personal property that he should be entitled to receive such as his book, cervical pillow, magazines, and glasses. Stoll responded, "Write a kite to Sergeant Tomakda/Tomakta, " and he walked away with the paper bag. Plaintiff immediately wrote an Inmate Request for Interview and submitted it to "Sgt. Tomakta" but he received no response. He submitted another request and received no response. He submitted a third request, and it was returned on July 31, 2012, with the assertion that Plaintiff had already appealed the issue.

On May 10, 2012, Plaintiff submitted a second grievance (Log #CSPC-5-12-03080) which was not returned until he sent a third grievance and letter to the warden. After he sent the letter to the warden, Plaintiff sent a letter to the Office of Internal Affairs, which refused to investigate the matter and instead forwarded the letter to Captain R. ...


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