United States District Court, E.D. California
ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO
STATE A COGNIZABLE CLAIM FOR RELIEF ORDER THAT THIS DISMISSAL
SHALL COUNT AS A STRIKE PURSUANT TO 28 U.S.C. §
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Travare Monroe Grant is a state prisoner proceeding pro se
and in forma pauperis pursuant to 42 U.S.C. § 1983.
Plaintiff has consented to magistrate judge jurisdiction
pursuant to 28 U.S.C. § 636(c). (ECF No. 7.)
before the Court is Plaintiff's third amended complaint,
filed on April 21, 2017. (ECF No. 20.)
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)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
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” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
SUMMARY OF THIRD AMENDED COMPLAINT ALLEGATIONS
is an inmate in the custody of the California Department of
Corrections and Rehabilitation (“CDCR”) at
California State Prison (“CSP”), Sacramento.
Plaintiff brings this action against defendant correctional
officials employed by the CDCR at CSP-Corcoran. Plaintiff
names the following individual defendants: Lieutenant F.
Montoya; Chief Deputy Warden M. Sexton; Chief of Appeals M.
Voong; Appeals Examination Warden R. Pimentel; Chief Deputy
Warden M. Cisneros; Lieutenant V. Marmolejo; Lt. R. Ruiz;
Correctional Officer O. Rubalcaba; and Correctional Officer
alleges as follows: On March 2, 2015, Plaintiff was refused
his breakfast and lunch in the morning hours by Defendants
Scalia and Rubalcaba. Plaintiff told each defendant that
under no circumstances shall prison meals be refused or
withheld as a disciplinary sanction, but Defendants Scalia
and Rubalcaba refused the meals. On April 7, 2015, Defendants
Scalia and Rubalcaba again refused Plaintiff his morning
breakfast and lunch meal as a disciplinary sanction, despite
a prohibition against prison meal refusals. Plaintiff
attaches as an exhibit and references CDCR Form 114-A, inmate
segregation record, showing that he refused breakfast and
lunch on March 2, 2015 and March 3, 2015, and accepted dinner
each of those days. Plaintiff also attaches a copy of a
regulation stating that food shall not be withheld as a
disciplinary sanction for any inmate. (ECF No. 20, p. 6.)
requested for his unit supervisor, Defendant Montoya, to
discuss reimbursement of his meal, but was told by Defendant
Montoya that despite the prohibition on refusing meals, he
was not receiving the meals. Plaintiff spoke to Defendant
Ruiz, whom was the lieutenant supervisor of the housing unit,
and was also told the meals would be refused. Defendant Ruiz
omitted Plaintiff's right to eat and was personally
involved in Plaintiff's sanction reports.
Plaintiff's disciplinary sanctions reports, he informed
Defendants Marmolejo and Cisneros that it is against the law
to refuse him a prison meal as a disciplinary sanction, that
his cell was dark due to a power outage and all cell housing
units were dark, that no defendant could see in his cell
anyway, and that none of the defendants used their
flashlights to see him.
appealed the meal refusal in and in an interview in person
with Defendant Sexton over the phone, he informed Defendant
Sexton about the prohibition on prison meal refusals.
Defendant Sexton said the policy does not matter. After the
interview, Plaintiff received a notice that Defendant Sexton
denounced Plaintiff's right to eat and Defendant Sexton
was personally involved in supporting prison meal refusal on
March 2, 2015 and April 7, 2015. Defendants Voong and
Pimentel both denounced Plaintiff's right to eat and
failed to protect that right despite being on notice of the
laws violated, specifically on March 2, 2015 and April 7,
2015. All Defendants were on notice of the power outage on
March 2, 2015, which limited visual views in Plaintiff's
asserts that his right to not be refused prison meals has
been violated, and his right to equal protection of all laws