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Osolinski v. Bigo

United States District Court, E.D. California

April 9, 2015

DAVID N. OSOLINSKI, Plaintiff,
v.
MARISA BIGO, et al., Defendants.

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM UPON WHICH RELIEF MAY BE GRANTED [ECF No. 27]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff David N. Osolinski is a civil detainee appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000 Now pending before the Plaintiff's amended complaint, filed March 12, 2015. (ECF No. 27.)

I.

SCREENING REQUIREMENT

The in forma pauperis statutes provides that "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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences, " Doe I v. Walmart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-679; 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. Id.

II.

SUMMARY OF COMPLAINT

On April 28, 2014, at approximately 9:00 a.m. and 11:00 a.m., Defendants Bigot, Alekhoughie, and Rivera entered Plaintiff's sleeping area while he was asleep and began rummaging through his personal property, conducting a routine general search. Plaintiff is aware of no authority which permits Defendants to perform a routine general search while the person is asleep in the area being searched. The aforementioned action was taken by Defendants on at least two other occasions. The routine general searches were performed in a manner solely for harassment and invasion of Plaintiff's privacy.

Plaintiff would awaken from his sleep and find Defendants going through his personal property. Plaintiff yelled, "Get the hell away from my bed area while I am sleeping." Plaintiff would further state, "You can't keep invading my sleeping space while I am asleep! You're not trying to announce [your intent] or making any attempts to awaken me to let me know you are in my bed space!" Defendant Marisa Bigot told Plaintiff, "I am the Unit 18 Supervisor. I can do whatever I want no matter what."

Defendants, and each of them, have a pattern, policy, and practice of making up new rules as they go, while nothing whatsoever is codified, and frequently changed to fit the situation.

III.

DISCUSSION

A. Civil Rights ...


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