United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A
CLAIM (ECF NO. 1)
Barno (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. §
1983. Plaintiff filed the complaint commencing this action on
October 9, 2018. (ECF No. 1).
2, 2019, the Court issued a screening order. (ECF No. 12).
The Court found that Plaintiff failed to state a claim for
violation of his due process rights because Plaintiff failed
to allege that he suffered any adverse consequences from
being found guilty of the Rules Violation Report
(“RVR”). (Id. at 7).
Court directed Plaintiff to either: 1) file an amended
complaint; or 2) notify the Court in writing that he wants to
stand on his current complaint, subject to this Court issuing
findings and recommendations to the assigned district judge
consistent with the screening order. (Id. at 9).
After receiving two extensions of time (ECF Nos. 15 &
17), Plaintiff failed to respond to the screening order.
However, as it appears that Plaintiff may have chosen to
stand on his current complaint (ECF No. 16, p. 2), the Court
issues these findings and recommendations consistent with 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. 4), 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
OF PLAINTIFF’S COMPLAINT
alleges that on January 19, 2016, he was placed in the
Administrative Segregation Unit (“ASU”) because
“confidential information” indicated
“safety/enemy concerns.” Plaintiff was
“deemed a threat to the safety and security of the
institution, staff and inmates.”
ASU staff labeled Plaintiff a “snitch” to other
ASU inmates, they tried to house Plaintiff with an
incompatible inmate in the cell Plaintiff was already housed
in, despite Plaintiff’s safety/enemy concerns, and
without following procedures on inmate housing.
was charged with an RVR for willfully delaying a peace
officer in the performance of duty by refusing to accept a
compatible cellmate in violation of 15 CCR § 3005(c).
However, Plaintiff did not violate 15 CCR § 3005(c), and
the charge was false.
Williams classified the RVR, and knowingly allowed the false
charges to proceed. He also failed to follow fair procedures
on giving adequate notice of the charges against Plaintiff,
specifically because Plaintiff never refused to be housed or
Smith was the chief disciplinary officer on Plaintiff’s
RVR, and on March 22, 2016, authorized the charges to remain,
even though Plaintiff was completely denied procedural due
process protections. Defendant Smith knew that defendant
Williams denied Plaintiff documentary evidence and witnesses,
and further permitted defendant Frazier to hear the matter
and adjudicate guilt without fair procedures.
Tapia was the investigative employee assigned to assist
Plaintiff. Defendant Tapia denied Plaintiff due process
protections. He failed to interview witnesses for
Plaintiff’s defense. He waited for witnesses to
transfer, making them unavailable for Plaintiff’s
investigation. Pursuant to regulations, he was supposed to
pursue the witnesses even after they transferred, but he
failed to do so. Additionally, instead of investigating and
collecting evidence to help Plaintiff, he denied Plaintiff
almost all his witnesses and evidence as “not
relevant” because defendant Frazier advised him to,
despite procedures that demand otherwise. Defendant Tapia was
working with and for defendant Frazier, not for Plaintiff.
Defendant Tapia also ...