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Soriano v. Davies

United States District Court, E.D. California

March 15, 2017

LEON M. SORIANO, Plaintiff,
v.
DAVIES, et al., Defendants.

          ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 15.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE “THREE-STRIKES” PROVISION SET FORTH IN 28 U.S.C. § 1915(g) ORDER FOR CLERK TO CLOSE CASE

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Leon M. Soriano (“Plaintiff”) is a state prisoner 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 August 19, 2015. (ECF No. 1.)

         On September 17, 2015, Plaintiff consented to magistrate judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (ECF No. 6.) 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).

         On December 9, 2015, the court dismissed the Complaint for failure to state a claim, with leave to amend. (ECF No. 7.) On February 16, 2016, Plaintiff filed the First Amended Complaint. (ECF No. 11.) On May 4, 2016, the court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (ECF No. 12.) On June 20, 2016, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (ECF No. 15.)

         II. 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)). 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). To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. ALLEGATIONS IN SECOND AMENDED COMPLAINT

         Plaintiff is incarcerated at Corcoran State Prison (CSP) in Corcoran, California, where the events at issue in the Second Amended Complaint allegedly occurred. Plaintiff names as defendants Davies, S. Pina (IGI Lieutenant), J.C. Garcia (IGI Sergeant), S. Niehus (IGI Correctional Officer (C/O)), A. Encinas (IGI C/O), and J. Bryant (Office Assistant, CSP Mailroom) (collectively, “Defendants”).

         Plaintiff's allegations follow. Plaintiff alleges that on April 2, 2013, Third Watch C/O Arcante attempted to give Plaintiff opened legal mail. Legal mail is to be inspected in front of prisoners per prison policy and federal statutes. Plaintiff told C/O Arcante, who was the officer passing out mail, that the contents inside the legal mail were missing from the envelope. Plaintiff asked Sgt. Arcante to sign the envelope, stating that it had been opened without Plaintiff allowed to be present. Sgt. Arcante refused to sign it stating he did not want to. He told Plaintiff to 602 (appeal) to IGI.

         Plaintiff saw C/O Jeffries who came to Plaintiff's cell and asked what the trouble was. Plaintiff explained the incident with Sgt. Arcante. C/O Jeffries inspected the mail and recognized that material was missing and that the introduction page stated that legal material was forwarded to Plaintiff. C/O Jeffries signed the envelope, stating it was open when Plaintiff received it. C/O Jeffries told Plaintiff to write an appeal against the IGI. Officer and the mail room. Plaintiff asked who to appeal in the mail room, and C/O Jeffers said J. Bryant, office assistant in the CSP mail room.

         Plaintiff began the appeal process. He filed an appeal against IGI Officers Niehus and Encinas. Officer Niehus denied the appeal at the first level of review. During Plaintiff's interview, Plaintiff produced the letter stating there was material enclosed. Note: CSP IGI requested that all validated prisoners' mail be sent to the IGI office. Plaintiff was a validated prison gang member of the BFG, and all of Plaintiff's mail was sent to IGI Officers Niehus and Encinas who were the IGI officers assigned to the BFG gang. They were responsible for inspecting Plaintiff's mail. Thus, IGI Officers were responsible for all missing mail.

         Plaintiff was then interviewed by Officer Garcia who directed all IGI officers to receive all mail, regular and legal. After reviewing Plaintiff's 602 appeal, Officer Garcia denied the appeal claiming they did not receive my legal mail, although he was the one who distributed the memo stating that all mail should be transferred to the IGI Office. Plaintiff ...


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