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Fregia v. Clair

United States District Court, E.D. California

March 10, 2017

MARK ANTHONY FREGIA, Plaintiff,
v.
J ST. CLAIR, et al., Defendants.

         THIRTY DAY DEADLINE

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1)

         Mark Fregia (“Plaintiff”) is proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on January 11, 2017. (ECF No. 1). On February 1, 2017, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 7), and no other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

         Plaintiff's complaint alleges that Licensed Vocational Nurses are conducting illegal cavity searches. Plaintiff believes that only custody staff has the jurisdiction and authority to conduct body cavity searches. Additionally, Plaintiff states that defendant Licensed Vocational Nurse (“LVN”) Alexi Medina is harassing Plaintiff. The Court has reviewed the legal standards as it applies to these claims and finds that Plaintiff's complaint fails to set forth a violation of the United States Constitution. Plaintiff does not adequately describe how each named defendant personally participated in violating Plaintiff's constitutional rights. The fact section of Plaintiff's complaint is less than a third of a page, and never mentions J. St Clair and J. Lewis (two of the parties Plaintiff lists as defendants). While Plaintiff does attach several health care 602s, appeals, and responses, he needs to include all the relevant information in the complaint itself. Additionally, even if the Court were to take into account the facts alleged in the 602s, Plaintiff still does not adequately describe how each named defendant personally participated in violating Plaintiff's constitutional rights.

         The Court provides the legal standards below and provides Plaintiff leave to amend his complaint if he believes additional allegations would state a claim consistent with this law.

         I. SCREENING REQUIREMENT

         The 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. § 1915(e)(2)(B)(ii).

         A complaint is required to 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)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. While a plaintiff's allegations are taken as true, 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). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         II. SUMMARY OF ALLEGATIONS IN THE COMPLAINT

         Plaintiff alleges in his complaint that custody staff have the jurisdiction and authority to perform cavity searches on inmates (including in their mouth and underneath their tongue). LVNs are not trained, qualified, or authorized to do these cavity searches. Despite this, LVNs are checking to make sure inmates do not “cheek pills.” Additionally, Plaintiff alleges that defendant Medina harasses Plaintiff and other inmates.

         Plaintiff attaches several health care 602s, appeals, and responses, which deal with the policy of having LVNs conduct searches on inmates and the conduct of defendant Medina.

         Plaintiff brings claims for “illegal cavity searches” and “‘deliberate indifference' harassment, ” and asks for $20, 000 in damages.

         III. ANALYSIS OF PLAINTIFF'S EXCESSIVE FORCE AND UNREASONABLE SEARCH CLAIMS

         A. Le ...


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