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Pimentel v. Beard

United States District Court, E.D. California

June 12, 2017

RICARDO PIMENTEL, Plaintiff,
v.
JEFFREY BEARD, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983. Plaintiff makes various allegations of interference with his mail, retaliation, and deprivation of his property. Before the court is plaintiff's second amended complaint for screening. For the reasons set forth below, the court finds plaintiff has stated potentially cognizable claims for retaliation and violation of plaintiff's access to the courts against defendant Fleming. The court will order this case to proceed on those claims and recommend dismissal of the remaining claims in the second amended complaint.

         BACKGROUND

         Plaintiff initiated this action in May 2014 with a civil rights complaint alleging defendant Fleming interfered with his mail, including his legal mail, and that Fleming threatened him. (ECF No. 1.) Plaintiff also named the prison warden and the director of the California Department of Corrections and Rehabilitation (“CDCR”) as defendants. On screening, the court found plaintiff stated potentially cognizable claims only against defendant Fleming for interference with his mail. (ECF No. 10.) Fleming moved to dismiss. The court granted the motion to dismiss on the grounds that plaintiff failed to state a cognizable claim for relief and permitted plaintiff an opportunity to amend his complaint. (ECF No. 34.)

         On May 23, 2016, plaintiff filed a first amended complaint. (ECF No. 35.) In that complaint, plaintiff reiterated some claims against defendant Fleming and added new ones. In addition, plaintiff added claims against new defendants Beard, Quintana, and Sweet. On screening, the court found plaintiff failed to state cognizable claims against any defendant. Plaintiff was given one final opportunity to attempt to state a cognizable claim by filing an amended complaint. (ECF No. 41.)

         On April 14, 2017, plaintiff filed a second amended complaint. (ECF No. 45.)

         SCREENING

         The court is required to screen all 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).

         Plaintiff, currently an inmate at Kern Valley State Prison, alleges conduct by defendant Brett Mathew Fleming at High Desert State Prison. (ECF No. 45.) Plaintiff asserts three claims - retaliation, access to the courts, and due process. They are addressed below.

         I. Claim 1 - Retaliation

         A. Allegations in the Second Amended Complaint

         Plaintiff appears to be alleging the following instances of retaliation by defendant Fleming:

1. Fleming placed negative entries in plaintiff's prison record, put plaintiff in administrative segregation, and changed plaintiff's conduct earning credits, which resulted in a release date change. These acts were in retaliation for plaintiff's exercise of his Fifth Amendment rights not to speak with officers regarding a contraband investigation.
2. Fleming validated plaintiff as a gang member in retaliation for plaintiff's exercise of his Miranda rights not to discuss a stabbing.
3. When plaintiff filed grievances about the retaliatory conduct, Fleming threw them away.
4. Plaintiff was also prevented from filing grievances about the gang validation which prevented him from pursuing ...

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