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Toscano v. Davey

United States District Court, E.D. California

April 4, 2017

BENJAMIN K. TOSCANO, Plaintiff,
v.
DAVE DAVEY, et al., Defendants.

          ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF THIRTY DAY DEADLINE

         Plaintiff Benjamin Toscano is a state prisoner appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's complaint, filed on August 31, 2016, in the United States District Court for the Northern District of California. (ECF No. 1.) On September 13, 2016, Plaintiff's complaint was transferred to the United States District Court for the Eastern District of California. (ECF No. 4.)

         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 on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         A 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

         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. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff is a state inmate in the custody of the California Department of Corrections and Rehabilitation (“CDCR”). The events at issue here occurred when Plaintiff was incarcerated at Corcoran State Prison (“Corcoran”). Plaintiff names the following individuals as defendants: Dave Davey, Warden of Corcoran; Scott Kernan, CDCR Director; A. De La Cruz, Captain at Corcoran; R. Ruiz, Lieutenant at Corcoran; A. Maxfield, Correctional Counselor at Corcoran; D. Edree, Jr., Correctional Counselor at Corcoran for Appeals; M. Oliveria, Correctional Counselor at Corcoran for Appeals; and K. Cribbs, AGPA Officer at Corcoran Appeals.

         Plaintiff alleges that Defendants conspired to create and submit false statements and documents in an attempt to set him up for assault or murder. Plaintiff alleges that on May 19, 2016, Sgt. Garcia and Officer Patino issued him a fabricated CDCR 128B chrono dated September 11, 2014 (“2014 chrono”), from Defendant Maxfield for an “STG-SRC committee” which does not apply to him in an attempt to set him up for assault or murder. It appears that Plaintiff alleges that the false statements and documents were to set him up to be assaulted or murdered. Plaintiff deliberately became anti-social and ignored all inmates for over a year and a half. Officials were aware of this and encouraged both active and SNY inmates to harass and threaten Plaintiff.

         On September 2, 2014, he filed a CDCR 22 request to Defendant Maxfield for a transfer out of state, which Defendant Maxfield said she would look into and to allow thirty days. On October 13, 2014, Plaintiff filed another CDCR 22 request to Defendant Maxfield inquiring about his request for a transfer out of state, which she responded to on October 15, 2014, saying that the request is pending DRB completion. Plaintiff states that Defendant Maxfield's responses to Plaintiff's CDCR 22 requests do not include any of the false statements in the 2014 chrono, which he contends is proof that the 2014 chrono is backdated and fabricated by Sgt. Garcia, Officer Patino, and Defendant Maxfield.

         On May 22, 2016, Plaintiff filed a CDCR 602 appeal of the 2014 chrono. On July 11, 2016, Defendants De La Cruz and Ruiz denied his appeal at the first level of review, stating that the appeal was referred to the “hiring authority” and that pursuant to the June 6, 2016 memorandum, the appeal did not meet the requirement for a staff complaint. Plaintiff contends that Defendants De La Cruz and Ruiz made a false statement in denying Plaintiff's appeal and in avoiding investigating Sgt. Garcia, Officer Patino, and Defendant Maxfield for creating and submitting the fabricated 2014 chrono to set Plaintiff up for assault or murder.

         On August 5, 2016, Plaintiff filed his response to the appeals coordinators for review at the second level. On that same date, he sent a letter to Defendant Kernan regarding the alleged false statements in the 2014 chrono, but Defendant Kernan has not responded, removed these documents from Plaintiff's file, or investigated the officials for creating and submitting the false documents. On August 16, 2016, the appeals coordinator returned the appeal with no response or rejection notice, which Plaintiff claims is a stall tactic being employed by appeals coordinators. Plaintiff contends that he has more than a dozen appeals filed and the appeals coordinator returns them with no rejection notice, reply, etc.[1]

         Plaintiff alleges that the Defendants conspired to create and submit false statements and documents in an attempt to set him up for murder and assault, to deny the appeal, to fabricate statements about the hiring authority to avoid investigating officials for creating and submitting the 2014 chrono, to return or reject the appeal so it cannot be processed to the second level, to keep the documents in his files to keep him in danger, to retaliate against him for exercising his First Amendment rights in filing appeals and civil suits against officials, and to cover up these violations.

         Plaintiff seeks a declaratory judgment that Defendants' acts and practices violated his rights and put him in imminent danger; a preliminary and permanent injunction requiring Defendants, their agent, employees, and successors to cease retaliating and fabricating statements and documents; an injunction ordering a criminal investigation and federal investigation into Defendants' acts, removal of the 2014 chrono from his files, removal of current appeals coordinators, Warden, Director of CDC, and officials involved in the 2014 chrono, and prevention of harassment and threats by CDC officials of Plaintiff. Plaintiff also seeks compensatory damages, punitive damages, costs, and nominal damages.

         III.

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