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Harbor v. Cherniss

United States District Court, E.D. California

April 12, 2017

TRAVYON C. HARBOR, Plaintiff,
v.
CHERNISS, et al., Defendants.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Screening Requirement

         The in 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).

         II. Pleading Standard

         Section 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).

         To 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).

         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 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. at 677-78.

         III. Plaintiff's Allegations

         At all 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.

         Plaintiff's allegations are similar to those previously asserted:

         On 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.

         Plaintiff immediately asked to see medical because he was experiencing severe pain in his testicles, but his request was denied.

         Cherniss has previously been accused of similar conduct by Black inmates. Although Warden Duffy was made aware of these accusations, he nonetheless promoted this defendant.

         Plaintiff claims the defendants conspired to violate his rights under the Eighth Fourteenth Amendments. He seeks monetary damages.

         IV. ...


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