United States District Court, E.D. California
ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Doc. 13.) ORDER FOR THIS DISMISSAL TO COUNT AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g) ORDER FOR CLERK TO CLOSE CASE
GARY S. AUSTIN, Magistrate Judge.
John Edward Mitchell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 5, 2012. (Doc. 1.) On March 13, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The court screened the Complaint and issued an order on May 9, 2014, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On June 6, 2014, Plaintiff filed the First Amended Complaint, which 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 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 is required to 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
III. SUMMARY OF FIRST AMENDED COMPLANT
Plaintiff is a state prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR), presently incarcerated at California State Prison-Sacramento in Represa, California. The events at issue in the First Amended Complaint allegedly occurred at the Corcoran State Prison (CSP) in Corcoran, California. Plaintiff names as defendants T. Norton (Acting Chief Deputy Warden), R. Chavez (Correctional Counselor II), O. Bailey (Correctional Counselor I), Sergeant S. Marsh, Lieutenant A. Cruz, and Correctional Officer (C/O) G. Rodriguez (collectively, "Defendants"). All of the Defendants were employees of the CDCR at CSP at the time of the events at issue. Plaintiff's factual allegations follow.
On October 11, 2009, as a result of successfully appealing his guilty finding of a Rules Violation Report for "assault on inmate w/wpn" while at California Mens Colony-East in San Luis Obispo, California, Plaintiff received a reissue/rehearing order of the RVR, due to due process violations. A reissue/rehearing order, per the DOM (Department Operations Manual) § 54100.18.3, is "a decision to order the rehearing of a disciplinary charge acts to void all prior dispositions concerning the CDCR 115 RVR being appealed, rendering a SHU term void." (First Amended Compl. (FAC) at 7 ¶1.)
On October 25, 2009, Plaintiff was sent by bus to CSP and housed in the SHU for the purpose of punishment, despite the RVR not being reissued or reheard. On November 3 and 4, 2009, Plaintiff showed his counselor, defendant CCI O. Bailey, a copy of the reissue/rehearing or order and informed defendant Bailey that Plaintiff was inappropriately housed.
On November 5, 2009, Plaintiff was not allowed to attend a "new arrival" classification held by defendants Norton, Bailey, and Sgt. Marsh, due to an injury to his back suffered when he fell in the shower. (FAC at 8 ¶4.) Plaintiff received emergency medical treatment for the fall. Plaintiff did not sign an "absentia" waiver as required by CCR § 3375(3)(A)(B). (Id.)
On November 25, 2009, defendant C/O Rodriguez disposed of Plaintiff's personal property because Plaintiff was inappropriately housed in the SHU. "Ca. Admin. Code title 15 § 3190(d) reads: If the inmate received a SHU term, the inmate shall be required to dispose of unallowable property due to privilege group or security level and /or inst. mission change in accordance with section 3191(c).'" (FAC at 8 ¶5.)
On December 1, 2009, Plaintiff's rehearing was held in the SHU before defendant Lt. Cruz. Plaintiff immediately objected to the hearing, telling defendant Cruz, "My due process rights are being violated because I'm already presumed guilty being in the SHU already." (FAC at 8 ¶6.) Defendant Cruz responded, "Someone believes you're already guilty, I'm obligated to find you guilty, just appeal it." (Id.) Plaintiff asked, "Where is my radio, the alleged weapon?" and defendant Cruz said, "I don't know, maybe they will send it later." (Id.) Plaintiff informed defendant Cruz that the prior hearing was ordered to be reheard because the radio had not been allowed to be present in his defense, and for failure to call his witness, the alleged victim, to explain why the victim's statements contradicted each other and whether Plaintiff was the assailant. Plaintiff asked defendant Cruz to test the reliability of the confidential informant, who could not accurately answer when or where the incident took place. Despite these and other discrepancies, Plaintiff was found guilty.
In December 2009, Plaintiff informed defendant Sgt. March that he was interested in going to a Sensitive Needs Yard (SNY) because of retaliatory acts by corrections officers at different prisons. Sgt. March told him he could not go to SNY for staff-related issues.
On January 14, 2010, Plaintiff was given a fifteen-month SHU term by defendant Norton. On August 30, 2010, Plaintiff was released from the SHU to Ad-Seg, and then back ...