United States District Court, E.D. California
BENJAMIN K. TOSCANO, Plaintiff,
DAVE DAVEY, et al., Defendants.
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR
FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF THIRTY DAY
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.)
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.