Revis v. Diaz

          FIRST SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983

          DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE.

         I. Screening Requirement and Standard

         Plaintiff Andre L. Revis, a state prisoner proceeding pro se and in forma pauperis, filed an action in the Fresno County Superior Court on September 9, 2013, entitled Revis v. Diaz, et al., No. 13CECG02836. On March 6, 2015, Defendants removed the action to federal court. On July 10, 2015, Plaintiff filed a First Amended Complaint in this Court pursuant to 42 U.S.C. § 1983.

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and 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). 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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II. Discussion

         A. Plaintiff's Allegations

         Plaintiff is incarcerated at the California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff brings this action against the following Defendants: Warden Ralph Diaz; Associate Warden S. Sherman; S.H.O. Lieutenant C. Alvarez; Lieutenant B. Chapman; Lieutenant J. Ourique; Appeal Examiner D. Foston; Correctional Officer J. D. Lozano; S. Magnia; G.R. Cuevas; and R. Curiel-Rodriguez.

         On March 27, 2012, Plaintiff was transferred from Corcoran State Prison to CSATF and housed in a cell with Inmate Davis, #D-64412. Plaintiff immediately informed housing unit correctional custodial staff on Second and Third Watch of the "grave incompatibility problems" with respect to this housing assignment. Plaintiff claims that J. Rising, Tapia, S. Magnia, G.R. Cuevas, and R. Curiel-Rodriguez disregarded Plaintiff's numerous requests for a cell move from March 27, 2012, to April 25, 2012.

         On April 17, 2012, Plaintiff informed Defendant Curiel-Rodriguez that his anxiety level was headed toward homicidal-suicidal ideations and requested to be put in contact with psychologist E. McKenzie. Defendants Cuevas and Curiel-Rodriguez notified Sgt. J. Ourique of the situation. Ourique became very belligerent, hostile, provocative, and threatening toward Plaintiff. Ourique did not initiate a cell move, and Plaintiff claims his reaction to Plaintiff's request only made matters worse between himself, his cellmate, other inmates, and custodial staff.

         On April 18, 2012, Plaintiff wrote an inmate appeal (CDCR-602) and addressed the envelope to Warden Ralph Diaz. On the envelope, Plaintiff wrote the words "confidential mail." On the appeal, Plaintiff wrote the words "emergency appeal." Plaintiff claims this placed Defendants Diaz and Sherman on notice of his situation.

         On May 3, 2012, Plaintiff's inmate appeal was stamped by the CSATF appeal coordinator as not warranting emergency status processing. It was assigned as a staff complaint on May 9, 2012.

         Plaintiff remained in his current cell with Inmate Davis until April 25, 2012, when Plaintiff physically removed himself and his personal property from the cell and informed Correctional Officer Gosnami that he could not take the housing arrangement any longer. Defendant Cuevas told Plaintiff to ...