United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO EITHER FILE AN AMENDED
COMPLAINT OR NOTIFY THE COURT OF HIS WILLINGNESS TO PROCEED
ONLY ON COGNIZABLE CLAIM (ECF NO. 1)
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff's March 7, 2017, Complaint is before the Court
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.
complains of conduct occurring while he was housed at High
Desert State Prison (“HDSP”) in Susanville,
California, and then at Corcoran State Prison
(“CSP”) in Corcoran, California. Plaintiff names
HDSP Warden R. St. Andra, Correctional Officer
(“CO”) Benson, and Sergeant (“Sgt.”)
Jane Doe. He also names CSP Warden Davie, CO B.W. Davis, CO
A. Bustinza, Sgt. C. Love, Sgt. Wilson, and Lieutenant
(“Lt.”) John Doe/P. Finally, he names M. Voong,
Chief at the California Department of Corrections and
Rehabilitation Office of Appeals.
claims may be fairly summarized as follows:
November 25, 2015, while housed at HDSP, Plaintiff was
escorted by CO Benson to Receiving and Release
(“R&R”) due to an upcoming transfer to CSP.
Once at R&R, CO Benson commented to CO Jane Doe, “I
think inmate Bullard is walking weird.” CO Jane Doe
said, “We'll give him the old treatment.”
These two officers then took Plaintiff to a private room
where CO Jane Doe closed the door. There, CO Benson held
Plaintiff down while CO Jane Doe stuck a finger inside
Plaintiff's rectum. Afterward, CO Jane Doe said, “I
don't think he'll walk weird anymore, ” and CO
Benson laughed while asking “Did you strike
gold?” Neither of these Defendants reported the search.
filed a grievance concerning this incident at HDSP and asked
that it be kept confidential. On December 11, 2015, after he
was transferred to CSP, he was interviewed by CSP staff
members Lt. John Doe/P and Sgt. Wilson. Later that same day,
CSP Warden Davie sent Sgt. Love of the I.S.U. Investigative
Service Unit to interview Plaintiff.
Plaintiff, the December 11, 2015, interviews establish HDSP
Warden St. Andra's liability because, instead of
directing HDSP staff to interview Plaintiff, this Defendant
directed CSP staff members to interview him, putting
Plaintiff “at risk to ridicule & reprisals, ”
which he claims he did suffer. Warden St. Andra also failed
to properly investigate Plaintiff's allegations.
Regarding Warden Davie, the interviews purportedly establish
his liability because he used to work at HDSP.
December 27, 2015, Plaintiff submitted a staff complaint at
CSP that was rejected the next day. The appeal requested that
(1) Plaintiff's personal property be located and returned
to him; (2) he to be taken to the ICC Institutional
Classification Committee; (3) his legal work be returned to
him; (4) these reprisals against him stop; and (5) the Office
of Internal Affairs investigate the matter.
unspecified date, CO Davis approached Plaintiff's cell to
escort him to the nurse's office. At Plaintiff's cell
door, CO Davis asked “Ain't you the Bullard who
filed a 602 against high desert staff?” CO Davis then
left Plaintiff's door and did not escort Plaintiff to the
nurse. Plaintiff claims this was in retaliation for his
Warden St. Andra and Warden Davie conspired with the other
Defendants to retaliate against Plaintiff for his sexual
assault grievance. They also violated Plaintiff's
confidentiality rights as a sexual assault victim.
multiple appeals regarding the sexual assault at HDSP were
denied by Defendant Voong.
seeks damages and declaratory relief.