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Silveira v. Fisher

United States District Court, E.D. California

March 29, 2018

JOSIAH SILVEIRA, Plaintiff,
v.
R. FISHER JR., et al., Defendants.

         ORDER 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 DAYS

         I. BACKGROUND

         Josiah 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 them.

         For the 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.

         II. SCREENING REQUIREMENT

         The 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. § 1915(e)(2)(B)(ii).

         A 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.

         Pleadings 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 Iqbal).

         III. SUMMARY OF PLAINTIFF'S COMPLAINT

         Plaintiff 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.

         Quintero was eventually removed from the yard, but Starkweather was not and continued to harass Plaintiff.

         On 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.

         Plaintiff 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.

         IV. EVALUATION OF ...


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