United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND (ECF NO. 9)
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE
Edwin Garcia (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff filed a
consent to magistrate judge jurisdiction on May 23, 2016.
(ECF No. 7.) Plaintiff's first amended complaint, filed
on December 15, 2016 is currently before the Court for
screening. (ECF No. 9.)
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (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).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (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, 129
S.Ct. at 1949 (quotation marks omitted); Moss v. United
States Secret Service, 572 F.3d 962, 969 (9th Cir.
2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is currently housed at California State Prison at Corcoran,
California. The events in the complaint are alleged to have
occurred at Corcoran State Prison. Plaintiff names Podsakoff,
correctional officer, and Quillen, correctional officer, D.B.
Hernandez, Sergeant; T. Wyman, Counselor; Viganya, property
alleges as follows. In Claim 1, Plaintiff alleges Defendants
Podsakoff and Qulilen tried to get plaintiff harmed by
“spreading rumors and trying to get an inmate in his
cell to harm” Plaintiff. On September 9, 2015,
Defendant Podsakoff refused to give Plaintiff a pen because
he lost the tip of the pen. Later at dinner, Podsakoff and
Plaintiff got into a verbal confrontation and Podsakoff
threatened to blow Plaintiff away and said he'll see to
it that Plaintiff does not make it home. Plaintiff held up
the food try in order to report the misconduct.
told Sergeant Duncan about the threat. Sergeant Duncan lied
during the investigation of Podsakoff. The next day
(September 10, 2015) Defendant Quillen conspired with
Podsakoff and tried to carry out Podsakoff's threats and
spread lies and said I was a homo and told me he'd get
someone in his cell to get him. People tried to cover up the
incidents on September 9, 2015 and September 10, 2015.
Plaintiff filed a 602 on Podsakoff and Podsakoff later told
Plaintiff that he threw it out. Plaintiff complains that
Podsakoff and Quillen conspired to have Plaintiff harmed.
claim 2, Plaintiff alleges bad living conditions. Plaintiff
alleges that on September 28, 2015, he told counselor Wyman
about his safety concerns. He had been on single cell status.
Plaintiff explained of two cell incidents that occurred due
to officers' “lying and old case factors.”
The committee took his single cell claiming he was E.O.P.
Plaintiff was concerned because he feared for his life if he
were double celled. Plaintiff told the counselor that Quillen
tried to set Plaintiff up with a southsider then a special
needs cellie. Plaintiff states Correctional officer Lawrence
passed another inmate Plaintiff's 128-G with sensitive
information in it. Plaintiff alleges that defendants are
deliberately indifferent to prison politics. Defendant Wyman
put plaintiff double celled. Plaintiff filed an emergency
appeal on September 29, 2015, but D. Goree, the appeals
coordinator said an emergency is not warranted. Wyman and
Goree and Sergeant Denman and Sergeant Hernandez tried
covering up when Defendant Podsakoff and Lawrence conspired
to have Plaintiff murdered.
Claim 3, Plaintiff alleges that Sgt Hernandez and property
Viganya retaliated because Plaintiff filed a grievance by
breaking his TV. Plaintiff filed a 602 on September 2, 2015
because of property delay. Plaintiff alleges defendant
Viganya then broke his TV. Hernandez refused to conduct an
interview and wrongly claimed that Plaintiff refused the
interview. Sgt Hernandez cancelled the 602 and Plaintiff
appealed the cancellation and all his arguments were ignored.
Officer Viganya and Sergeant Hernandez were retaliating for
plaintiff exercising his First Amendment right to file
seeks as damages $7, 000, 000 in compensation and punitive