United States District Court, E.D. California
TRAVYON C. HARBOR, Plaintiff,
CHERNISS, et al., Defendants.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. On April 20, 2016, plaintiff's first amended
complaint was screened and found to state claims against
defendants Cherniss, Olmedo, and Duffy. Following service,
defendants filed an Answer on July 27, 2016. Plaintiff then
filed a motion to file a second amended complaint, to which
the defendants filed a statement of non-opposition.
Accordingly, plaintiff's motion was granted, and he has
now filed a second amended complaint. This pleading is before
the court for screening. Also pending is plaintiff's
request for appointment of a guardian ad litem
(“GAL”) or counsel.
forma pauperis statute provides, “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).
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).
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 set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. Facial
plausibility demands more than the mere possibility that a
defendant committed misconduct and, while factual allegations
are accepted as true, legal conclusions are not. Id.
times relevant to this action, plaintiff was a state inmate
housed at California Medical Facility (“CMF”) in
Vacaville, California. He names as defendants CMF Warden
Brian Duffy, Correctional Sergeant Cherniss, Correctional
Sergeant O. Olmedo, and Does 1 through 20.
allegations are similar to those previously asserted:
August 5, 2014, plaintiff, a mobility-impaired Black inmate,
was on his way to chow-hall for dinner when he was stopped
for a search by defendants Cherniss and Olmedo. During the
search, Cherniss grabbed and pulled on plaintiff's penis
and testicles. Olmedo witnessed the incident and heard
plaintiff's complaint, but did not intervene. Other
correctional officers also either witnessed the incident or
were made aware of it afterward, but none reported it as
required by prison regulations.
immediately asked to see medical because he was experiencing
severe pain in his testicles, but his request was denied.
has previously been accused of similar conduct by Black
inmates. Although Warden Duffy was made aware of these
accusations, he nonetheless promoted this defendant.
claims the defendants conspired to violate his rights under
the Eighth Fourteenth Amendments. He seeks monetary damages.