United States District Court, E.D. California
ORDER DISMISSING ACTION AS BARRED BY THE STATUTE OF
LIMITATIONS (DOC. 23)
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
alleges various causes of action against several prison staff
at Pleasant Valley State Prison for improperly identifying
him as a member of the Black Gorilla Family
(“BGF”) gang when, in fact, he is a member of the
Crips gang. (Doc. 23.) For the reasons discussed below,
Plaintiff’s claims are barred by the statute of
limitations and this action is DISMISSED with prejudice.
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,
malicious, 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);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
1983 “provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda
Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
Second Amended Complaint
he is now housed at California Correctional Institute,
Plaintiff complains of acts that occurred while he was housed
at Pleasant Valley State Prison at the hands of Defendants
Warden, PD Brazelton, Lieutenants A. Shimmin and Duty, and
Correctional Officer M. Seese. Plaintiff seeks monetary and
identifies the following three “Counts” in which
he asserts multiple constitutional claims: (1) due process
violation, discrimination based on race, and intentional
infliction of emotional distress; (2) cruel and unusual
punishment, failure to protect/safety, negligence; and (3)
defamation and libel. Though there are other substantial
defects in his pleading, as discussed below,
Plaintiff’s claims are DISMISSED because they are
barred by the statute of limitations.
Summary of Allegations
alleges that, prior to and upon entering CDCR, he was
recognized as a member of the Crips gang and CDCR classified
him as a Crip. (Doc. 23, p. 8.) Plaintiff alleges that, on
April 23, 2009, C/O Seese submitted a false and fraudulent
128-B chrono (based on a drawing of a gorilla found in
Plaintiff cell) associating Plaintiff with the BGF.
(Id.) Thereafter, C/O Seese used the drawing to
inappropriately cell Plaintiff with BGF, who were his known
enemies. (Id.) Prior to this, Plaintiff had only
ever been housed with Crips as cellmates as they are a
“rival faction to all other gang [sic] that are not
Crips, espically [sic] BGF.” (Id.) C/O Seese
is an ISU officer and as such, part of his duties include
reviewing Plaintiff’s Central File (C-File) which
contained documentation that labeled Plaintiff as a Crip.
(Id.) On this basis, C/O Seese allegedly knew, or
should have known the ramifications of the chrono he
generated which changed Plaintiff’s status.
C/O Seese wrongly identified Plaintiff as a BGF,
Plaintiff’s “bed card, ” reflecting who he
could be placed with, was changed which put his life in
danger. (Id., p. 9.) Plaintiff alleges that, as a
result of this wrong gang identification, he was sliced on
the arm, stabbed in the torso, and had numerous other violent
altercations with members of both the BGF and Crips.
February 2010, Plaintiff was informed by the psychiatrist
during an evaluation for his hearing with the Parole Board,
that he was labeled both a BGF and a Crip. (Id., p.
9.) Subsequently, Plaintiff approached Lt. Duty as he was
leaving the yard and questioned him about the false chrono
generated by C/O Seese since he would have had to okay it.
(Id.) Plaintiff informed Lt. Duty he was being
treated badly by other inmates and that the false chrono had
come up in his parole hearing. (Id.) Lt. Duty said
he fully agreed with C/O Seese’s chrono and that there
was nothing Plaintiff could do to change it. (Id.,
Plaintiff wrote a letter to Warden Brazelton, explaining the
situation. (Id., p. 10.) An Associate Warden
responded and told Plaintiff to use the inmate appeal (IA)
process to raise the concern. Plaintiff filed IA number
PVSP-S-12-02521. (Id.) On November 16, 2012,
Plaintiff stated to the Institutional Classification
Committee (ICC) that he was tired of the prison politics and
wanted to transfer to a sensitive needs yard because he
believed he was not safe and felt that CDCR could not protect
him under his current living circumstances. ...