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Drake v. Kernan

United States District Court, E.D. California

May 9, 2018

SAM DRAKE, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS [ECF NO. 26]

         Plaintiff Sam Drake is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's first amended complaint, filed February 9, 2018.

         I.

         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 on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         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. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff names G. Navarro (correctional officer), M.D. Gonzales (correctional officer), Kathleen Allison (Director of California Department of Corrections and Rehabilitation [CDCR]), Brian Moak (Chief of Classification Services at CDCR), C. McCabe (Chief Surgeon at Corcoran State Prison), and M.V. Sexton (Chief Deputy Warden at Corcoran State Prison) as Defendants.

         In 1994, Plaintiff was remanded to the custody of CDCR. In June 2000, Plaintiff was a witness in a United States District Court and testified against CDCR and Corcoran State Prison corruption among prison staff.

         Defendants Navarro, Gonzales, Allison, Moak, Sexton and McCabe agreed on a course of treatment to injure and oppress Plaintiff.

         On April 6, 2015, Defendants Navarro and Gonzales conspired to murder and inflict serious bodily injury on Plaintiff. Plaintiff was randomly moved from the security housing unit at Corcoran State Prison 4A facility to 4A2L where Defendants Navarro and Gonzales were posted.

         On April 6, 2015 through May 2015, Plaintiff wrote requests complaining about the lack of in-cell air circulation, bedding, linen, and sink sanitation. Plaintiff did not receive a response to his requests.

         On April 23, 2015, under the auspice of enforcing CDCR security check, Gonzales stated in front of general population inmates that Plaintiff was a “SNY” “piece of shit” “rat” who has “been ‘snitching' on us to the sergeant.” On May 5, 2015, Navarro called Plaintiff a “snitch” in front of general population inmates and stated: “Drake, in cell #48, keeps snitching on us [guards] to the sergeant and captain…writing complaints, ” and “if you guys (e.g. black inmates) don't handle it, we are going to handle it!” In addition, Gonzales called Plaintiff a “snitch” “SNY, ” “piece of shit” in front of the general population inmates.

         On May 20, 2015, Defendants Gonzales and Navarro took Plaintiff from cell #48 to a hallway holding cage/cell to collect a urine sample from Plaintiff under the threat of discipline. Plaintiff told Defendants Gonzales and Navarro that he “filed a 602 against the Warden for his wasting human-resources by unnecessarily repeatedly drug-testing [him], a non-user because it is harassment.” Defendant Gonzales, without notice, left the 2 on one 1 escort, after hearing Plaintiff speak of having filed a staff complaint. After Plaintiff provided a urine sample and was placed in a rotunda holding cage, Plaintiff asked Navarro, “Why am I not being taken back to my cell?” Navarro told Plaintiff “you have to wait here until my partner Gonzales is done searching your cell.” Gonzales remained in Plaintiff's cell for approximately thirty to forty minutes, ransacking Plaintiff's property then returned to the rotunda with two fifty-gallon trash bags and refused to disclose the contents. When Plaintiff asked what items were taken, Gonzales stated, “you had a lot of trash! Just stand there and shut the fuck up! I read your legal papers, and what you write isn't worth shit! You are not on my level yet, I know exactly what to say in court to win!” Gonzales further stated, “Oh, if you want to see ‘personal, ' I will get you struck-out! I have already gotten four prisoners life sentenced and I'll be glad to make you the fifth!” Gonzales then told Plaintiff to “turn around and cuff-up…if you so much as look at me, I will slam you onto the floor head first!” On May 21, 2015, Gonzales threatened to charge Plaintiff for the lost state linen held taken from a different prisoner's cell on May 20, 2015, if Plaintiff filed an inmate grievance regarding the search of his cell.

         On May 21, 2015 and May 28, 2015, Gonzales filed two retaliatory Rule Violation Reports (RVR) against Plaintiff regarding the May 20, 2015 escort. Gonzales accused Plaintiff of destroying state property and willfully resisting and delaying a peace officer in the performance of his duties.

         On May 28, 2015, June 15, 2015, and June 18, 2015, Gonzales attempted to lure Plaintiff out of his cell to be attacked during the night shift, and Plaintiff was unable to exit his cell for shower on these dates.

         On June 23, 2015, Gonzales intimidated/threatened use of force against Plaintiff stating, “Do you want a problem! Make sure you spell my name correct, it won't be the first time I've been to court!” On this same date, ...


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