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McNeal v. Cano

United States District Court, E.D. California

April 7, 2015

VERNON WAYNE MCNEAL, Plaintiff,
v.
CANO, et al., Defendants.

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

DENNIS L. BECK, Magistrate Judge.

Plaintiff Vernon Wayne McNeal ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on October 27, 2014. It was transferred to this Court on November 12, 2014. Plaintiff names Correctional Officer Cano and Appeals Coordinators Ramos, Cota, Jasso and Hall as Defendants.[1]

A. LEGAL STANDARD

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.

To state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; 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, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is currently incarcerated at Calipatria State Prison. The events at issue occurred while Plaintiff was incarcerated at Corcoran State Prison, in Corcoran, California.

On July 4, 2013, Defendant Cano boxed and inventoried Plaintiff's property after he was placed in ASU.

On August 2, 2013, CO Valdez was issuing Plaintiff's legal property so that he could meet a deadline in McNeal v. Evert, et al., 2:05-cv-00441-GEB-EFB. When he was going through his property, Plaintiff noticed that a lot of it had not been inventoried and packed with the rest of his property. Plaintiff therefore refused to take possession of any of his property.

A day later, Plaintiff received Defendant Cano's July 4, 2013, inventory sheet. He alleges that the inventory was not correct, and that Defendant Cano took a "large amount of [Plaintiff's] legal and personal property hoping that it would stop [Plaintiff] from filing" a court action against his co-worker, CO Gonzalez. ECF No. 1, at 8. However, this retaliation also interrupted McNeal v. Evert and McNeal v. Fleming, et al., 2:02-cv-02524-TLN-JFM

Plaintiff filed an appeal about his missing property on September 8, 2013, and it was given Log Number SATF-Z-13-03640. In the appeal, Plaintiff noted that on August 16, 2013, the Court issued an order in McNeal v. Evert, et al., giving him thirty days to file a pretrial statement.

Defendant Jasso returned the appeal on September 10, 2013 because "it was not an appeal." ECF No. 1, at 8. Defendant Jasso also instructed Plaintiff to submit a Request for Interview prior to using the appeals process. Plaintiff contends that this is not supported by Article 8. Plaintiff contends that Defendant Jasso's statements are hindering his due process rights pertaining to his missing legal and personal property. He also alleges that Defendant Jasso's response was to protect Defendants Cano, Jasso, Hall, Cota and Ramos.

Plaintiff contends that Defendant Cano's statement about the inventory and packing in the First Level response was not entirely true. Plaintiff's January 13, 2014, trial date in McNeal v. Fleming, et al., 2:02-cv-02524-TLN-JFM was vacated due to ...


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