United States District Court, E.D. California
ORDER AUTHORIZING SERVICE OF COMPLAINT ON DEFENDANTS
DAVIS AND LUNES (ECF No. 10) THIRTY DAY DEADLINE TO RETURN
SERVICE DOCUMENTS FINDINGS AND RECOMMENDATION TO DISMISS
REMAINING CLAIMS AND DEFENDANTS WITH PREJUDICE FOR FAILURE TO
STATE A CLAIM FOURTEEN DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se and in forma pauperis, filed
this civil rights action pursuant to 42 U.S.C. § 1983 on
January 9, 2017. (ECF No. 1.) On February 28, 2017, the Court
screened Plaintiff's civil rights complaint and found it
stated cognizable claims against Defendants Davis and Lunes
for violating the First, Eighth, and Fourteenth Amendments.
(ECF No. 7.) Plaintiff was directed to file either an amended
complaint or a notice of willingness to proceed only on his
first amended complaint is now before the Court for
screening. (ECF No. 10.) He has declined Magistrate Judge
jurisdiction. (ECF No. 5.) No other parties have appeared.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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 upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “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. §
1983 provides a cause of action against any person who
deprives an individual of federally guaranteed rights
“under color” of state law. 42 U.S.C. §
1983. 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)), and 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). While factual
allegations are accepted as true, legal conclusions are not.
Iqbal, 556 U.S. at 678.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
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), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
is currently incarcerated at Pelican Bay State Prison in
Crescent City, California. His claims stem from events that
took place at the California Substance Abuse Treatment
Facility (“CSATF”) in Corcoran, California.
names as Defendants Correctional Lieutenant M. Lunes;
Correctional Officers Jared Davis and J. Joosten;
Correctional Counselor II R. Hall; and Appeals Coordinator
Ramos Ssaly. All are sued in their individual and official
allegations are best summarized as follows:
December 5, 2012, at approximately 6:45 am, Defendants Davis
and Joosten entered Plaintiff's cell and physically
assaulted Plaintiff. Davis placed Plaintiff in a chokehold
and hit him in the head and face. Joosten slammed Plaintiff
into the concrete and placed his knee in Plaintiff's
back. After Davis placed restraints on Plaintiff, he kneed
Plaintiff in the back and stated, “Welcome to SATF,
you've been introduced to the white devil.” At
approximately 10:00 am that same day, Plaintiff was placed in
administrative segregation (“ad-seg”). On
December 18, 2012, Plaintiff was issued a Rules Violation
Report (“RVR”) for battery on a peace officer
(“the first RVR”).
April 7, 2013, Plaintiff filed a grievance complaining about
the December 5 assault. He specifically requested that he not
be retaliated against for filing the grievance. On April 9,
2013, Plaintiff attended a hearing on the first RVR.
Defendant M. Lunes presided as the senior hearing officer
(“SHO”). Defendant Lunes found Plaintiff not
guilty of battery on a peace officer, but found Plaintiff
guilty of the lesser offense of resisting a peace officer.
was released from ad-seg on or about April 30, 2013. On May
13, 2013, Plaintiff filed a grievance asking that the first
RVR be dismissed in its entirety since the
“Findings” section of the RVR showed that there
was sufficient evidence presented during the disciplinary
hearing to find Plaintiff not guilty of resisting a peace
October 1, 2013, Davis issued Plaintiff another RVR stemming
from the December 5, 2012 incident, this time for possession
and distribution of a controlled substance (“the second
RVR”). A hearing was held on October 29, 2013, and
Lunes again presided as the SHO. Plaintiff said he was
concerned that Lunes would not provide him a fair hearing.
Lunes said the hearing would not be fair, then advised
Plaintiff of his appeals rights and said the appeal would not
be fair either. Plaintiff asked Lunes if he had a problem
with Plaintiff. Lunes said Plaintiff's May 13, 2013
grievance was the problem. Lunes said the second RVR should
never have been written, and therefore should be dismissed.
Lunes went on to say, “Since there is no proof of sales
I could drop this to simple possession, but since I know how
much you like writing 602's I'm gonna keep you busy,
find you guilty, and take those visits because that's how
I do it.” Plaintiff was found guilty of possession of a
controlled substance for sales or distribution.
December 15, 2013, Plaintiff filed a grievance stating that
his procedural due process rights were intentionally violated
by the Senior Hearing Officer. On January 28, 2014, Plaintiff
was interviewed on the matter. Plaintiff was told that he
would hear back soon and Defendant Hall said
“Lieutenant Lunes sends his regards.” On February
7, 2014, the Chief Disciplinary Officer issued an order
indicating that the first RVR would be dismissed for the due
process violation of “stacking” in relation to
the second RVR. On February 12, 2014, Plaintiff received a
copy of said order, along with an informational chrono
(“Form 128-B”) stating that the first RVR, for
battery on a peace officer, would be dismissed.
February 23, 2014, Plaintiff filed another grievance
requesting that the second RVR be dismissed because of
violations of due process. The grievance was cancelled as
untimely. On March 6, 2014, Plaintiff resubmitted the
grievance, contesting the untimeliness issue. On March 11,
2014, a person “claiming” to be Defendant Ramos
came to Plaintiff's cell to give Plaintiff a CDCR Form
695 saying that Plaintiff was abusing the appeals process.
Ramos stated, “Stop appealing this issue unless you
want to end up in [ad-seg].” (alteration in original).
April 4, 2014, Plaintiff was sent to ad-seg for an unrelated
issue. Soon after Plaintiff arrived in ad-seg, Defendant
Joosten arrived at Plaintiff's cell and stated,
“It's time for your dog ass to pay for your crimes
against humanity.” In June 2014, Plaintiff was told by
a friend to expect a package. In July 2014, Plaintiff asked
Joosten if a package had arrived for him. Joosten replied,
“You ain't got nothing coming” and barked at
Plaintiff like a dog. In September 2014, Plaintiff was
transferred to the Secure Housing Unit (“SHU”) of
Corcoran State Prison. On November 17, 2014, Plaintiff
submitted a grievance concerning his package. The grievance
was rejected because Plaintiff did not provide a tracking
number for the package. Plaintiff attempted to resubmit the
grievance, but it was again cancelled. Plaintiff submitted a
grievance appealing the cancellation. Ramos called Plaintiff
on the phone and said, “Did you think I was playing,
I'm having you sent to the bay now, and if you don't
knock it off you'll be stuck up there for the rest of
your life.” Plaintiff was eventually transferred to
Pelican Bay State Prison.
alleges violations of the First, Eighth, and Fourteenth
Amendments. He seeks injunctive relief and damages.