United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF CERTAIN CLAIMS [ECF NO. 26]
Sam Drake is appearing pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's first amended complaint,
filed February 9, 2018.
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).
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
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.
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.
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.
Navarro, Gonzales, Allison, Moak, Sexton and McCabe agreed on
a course of treatment to injure and oppress Plaintiff.
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.
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.
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
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.
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.
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.
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,