United States District Court, E.D. California
AND RECOMMENDATIONS RECOMMENDING THE CASE PROCEED AGAINST
DEFENDANTS H. GAMBOA AND R. ROQUE ON FIRST AMENDMENT
RETALIATION CLAIM AND RELATED STATE CLAIMS AND DISMISSAL OF
REMAINING CLAIMS (ECF No. 1) THIRTY DAY DEADLINE
Jesse Washington is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. The Court screened
Plaintiff's Complaint on April 28, 2017. (ECF No. 9.) In
its screening order, the Court found at least one cognizable
claim and gave Plaintiff the option of: (1) proceeding only
on his cognizable claims; (2) filing an amended complaint; or
(3) standing on his Complaint, subject to findings and
recommendations consistent with the Court's screening
order. On May 12, 2017, Plaintiff filed notice informing the
Court that he would like to stand on his Complaint. (ECF No.
10.) He also requests that the Court consider whether the
Complaint states an additional claim under 42 U.S.C. §
1985(3) against the two defendants. Aside from a claim for
retaliation (which the Court found was cognizable) and a
§ 1985(3) claim for conspiracy (which the Court has not
yet evaluated), Plaintiff “gives Court consent to
dismiss all other claims.” (ECF No. 10.) Accordingly,
the Court will now screen Plaintiff's Complaint.
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 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. § 1915(e)(2)(B)(ii).
complaint is required to 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., quoting Twombly, 550 U.S. at 570. The
mere possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. 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). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff was incarcerated at Kern Valley State Prison
(“KVSP”), Plaintiff reached an agreement with the
prison to allow Plaintiff to possess an extra Timex watch
above the one personal watch allotment, as well as two CDs
above the ten CD allotment.
5, 2015, Plaintiff filed a grievance appeal against Officers
H. Flores and S. Longoria for refusing to document the
additional Timex watch and CDs, along with a set of
additional headphones, on Plaintiff's property card.
Plaintiff also had a dispute regarding property resulting
from correctional officer Zamora spitting into
Plaintiff's personal drinking cup during another cell
Gamboa conducted a first level property appeal interview with
Plaintiff on May 29, 2015 and denied Plaintiff relief.
Plaintiff told Defendant Gamboa that he intended to pursue a
property appeal in small claims court if he needed to do so.
submitted the property appeal to the second level and it was
denied. On March 4, 2016, Plaintiff received the property
appeal from the Director's level review, indicating that
the Appeals Coordinator would provide Plaintiff with an
additional response and, if he was not satisfied, return the
appeal to the Director's level for final response.
Gamboa was assigned to investigate the property appeal.
Defendant Gamboa displayed hostility and anger toward
Plaintiff and told Plaintiff that he should not have sent the
property appeal log to the Director's level for review.
March 14, 2016, Defendants Gamboa and Roque conducted a
search of Plaintiff's cell. During the search, they took
eight CDs and one legal mail priority box. They left
Plaintiff's legal property in disarray.
Plaintiff returned from his work shift, he confronted
Defendants Gamboa and Roque about the search. Defendant
Gamboa told Plaintiff that “he got what was
coming” and should not have returned the property