United States District Court, E.D. California
DENYING PLAINTIFF'S REQUEST FOR COUNSEL WITHOUT PREJUDICE
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION
PROCEED AGAINST DEFENDANTS D. STARKWEATHER AND J. QUINTERO
FOR RETALIATION IN VIOLATION OF THE FIRST AMENDMENT, AND THAT
ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED WITH PREJUDICE
(ECF NO. 1) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE
Silveira (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the complaint commencing this action on July
25, 2017. (ECF No. 1). He alleges that two correctional
officers retaliated against him for filing grievances against
reasons described below, the Court recommends finding that
Plaintiff has stated a claim against defendants Starkweather
and Quintero for retaliation in violation of the First
Amendment. The Court recommends dismissing the claims against
defendants Fisher and Torres because they were not involved
in the underlying conduct and are being sued for their
supervisory roles. Plaintiff may file objections to these
findings and recommendations within 21 days from the date of
service of this order.
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). As Plaintiff is proceeding in forma
pauperis (ECF No. 6), the Court may also screen the
complaint under 28 U.S.C. § 1915. “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.
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
is an inmate at Valley State Prison (“VSP”) in
Chowchilla, California. He alleges that correctional officer
defendants J. Quintero and D. Starkweather retaliated against
him for utilizing his right of inmate appeals process. On
January 22, 2017, Plaintiff submitted a staff complaint
against defendant Quintero. After he filed the complaint,
defendant Quintero and Starkweather targeted him with
harassment. On February 11, 2017, Quintero and Starkweather
were conducting morning feeding in the Facility C dining
hall. They abruptly cleared all inmates from the dining hall.
Then Starkweather said to Plaintiff that she was going to
find a reason to write him up.
was eventually removed from the yard, but Starkweather was
not and continued to harass Plaintiff.
April 22, 2017, Plaintiff got written up by Starkweather for
not wearing his Mobility Impaired Vest (“MIV”),
even though wearing the MIV was optional. This write-up
happened when Plaintiff's harassment appeal against
Starkweather was pending.
contends he “can't even complete his right to the
appeals process without c/o D. Starkweather continuing to
make threats, stare down, harass, discriminate against and
involve additional officers by pointing the petition out to
other officers then staring him down.” On June 18,
2017, Starkweather wrote an Informational Chrono to the VSP
Chief Medical Officer, informing the medical department that
Plaintiff needed to be re-evaluated for his medical condition
due to his not wearing his MIV. Plaintiff alleges that
because of the constant harassment he felt pressure to
surrender his assigned ADA devices, despite his chronic pain
and medically needed use of the devices.
EVALUATION OF ...