United States District Court, E.D. California
GEORGE E. JACOBS, Plaintiff,
HERNANDEZ, et al., Defendants.
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED
COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON
COGNIZABLE CLAIMS THIRTY-DAY DEADLINE
L. Beck Judge
George E. Jacobs ("Plaintiff"), a state prisoner
proceeding pro se and in forma pauperis, filed this civil
rights action on April 28, 2016. Plaintiff names Corcoran
State Prison ("CSP") CCI S. Hernandez, CSP Warden
D. Davey, CSP CCII Cota, CSP Cpt. Gallagher and CSP Sgt.
Alvarado as Defendants.
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. §
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.
1983 provides a cause of action for the violation of
Plaintiff's constitutional or other federal rights by
persons acting under color of state law. Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long
v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006); Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). Plaintiff's allegations must link the actions
or omissions of each named defendant to a violation of his
rights; there is no respondeat superior liability under
section 1983. Iqbal, 556 U.S. at 676-77; Simmons
v. Navajo County, Ariz., 609 F.3d 1011, 1020-21
(9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d
1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
Plaintiff must present 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). The mere possibility of misconduct
falls short of meeting this plausibility standard.
Iqbal, 556 U.S. at 678; Moss, 572 F.3d at
ALLEGATIONS IN FIRST AMENDED COMPLAINT
is currently incarcerated at CSP in Corcoran, California,
where the events at issue occurred.
alleges that on March 11, 2016, he was discharged from the
ACH Hospital with a humerus bone fracture and radial nerve
palsy in his right arm. The condition left his right arm,
wrist and fingers paralyzed. Plaintiff states that he was
discharged so that he could be sent to an out-patient CDCR
medical facility because of his high-risk medical status.
However, he was placed and held in solitary confinement under
punitive conditions instead.
March 15, 2016, Plaintiff saw Defendant Hernandez walking the
tier talking to SNY inmates about their ICC hearings.
Plaintiff tried to get her attention to inquire about his
placement in Ad/Seg, but she ignored him. Each week,
Plaintiff tried to contact her about his committee hearing,
with negative results.
March 29, 2016, Plaintiff saw Defendant Cota on the tier
processing SNY inmates for ICC hearings. Plaintiff stopped
Defendant Cota and asked why he had not had an ICC placement
hearing. Defendant Cota told Plaintiff, "you know why
you haven't been taken to ICC, until you tell us
something or go SNY you gonna stay back here." ECF No.
1, at 7. He said that he couldn't help him and that
Plaintiff needed to talk to Defendant Hernandez.
April 11, 2016, Plaintiff sent a CDCR 22 form to ASU Sgt.
Cambell asking why he had not had an ICC hearing. Sgt.
Cambell investigated the situation and told Plaintiff that he
emailed Defendant Hernandez, but Defendant Hernandez did not
respond. Sgt. Cambell said he would continue to check on it.
April 12, 2016, Plaintiff sent a CDCR 322 form to Defendants
Davey and Gallagher asking about an ICC hearing. Plaintiff
explained his medical needs, but Defendants ignored him.
alleges that Defendant Davey is responsible for the training
and discipline of Defendants Hernandez and Cota, who are his
appointed designees responsible for preparing inmate files
and presenting cases before the ICC within ten days.
Defendant Davey is the chairman of ICC hearings and is
responsible for overseeing his designees' caseloads to
ensure that all inmates receive their hearings.
contends that Defendant Gallagher is responsible for ensuring
that he provides all inmates housed on the 3A yard and placed
in solitary confinement with a notice and hearing 48 hours
after placement. He is also supposed to follow-up with
inmates who inform him that they were not provided with a
notice or hearing, and review all lock-up orders.
was placed in solitary confinement by Defendant Alvarado
based on "unsubstantiated and unfounded suspicion of
safety and security concerns." ECF No. 1, at 8. The
conclusion of the investigation into Plaintiff's safety
and security was affirmed on December 19, 2015, by Defendant
Alvarado, but Plaintiff was still placed in solitary
confinement on March 11, 2016, without due process.
states that it has been 46 days and counting since he was
placed in solitary confinement without notice, a hearing or
charges. Plaintiff is a mental health prisoner with a
disability. Since Plaintiff has been in solitary confinement,
he has not had access to disability accommodations and has
been forced to shower in non-ADA showers. He also contends
that he is forced to take five-minute showers, which leave
him unable to adequately clean himself with one arm.
Plaintiff has become suicidal and has daily pain in his arm,
which went untreated for a month. Plaintiff also had severe
stomach pains, vomiting, fever and chills for four days, but
he did not receive medication attention. He has to scream
"man down" on four different occasions to get
emergency medical treatment. ECF No. 1, at 9. Each time,
Plaintiff was forced to fill out a co-payment form and was
returned to his cell without treatment.
contends that he has been discriminated against because of
his disability, harassed and verbally abused. Daily, the
guards provoke Plaintiff into committing a violent act so