United States District Court, E.D. California
ANDRE L. REVIS, Plaintiff,
RALPH N. DIAZ, et al., Defendants.
FIRST SCREENING ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION
L. BECK UNITED STATES MAGISTRATE JUDGE.
Screening Requirement and Standard
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.
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. §
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.
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.
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.
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.
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.
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.
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,
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