United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
ACTION [ECF NO. 17]
Jesse Willard is appearing pro se in this civil
rights action pursuant to 42 U.S.C. § 1983. This matter
was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(1)(B) and Local Rule 302.
September 13, 2019, the Court screened Plaintiff's
complaint and found that he had not stated any cognizable
claim. (ECF No. 17.) Plaintiff was granted leave to amend his
complaint allegations within thirty days to attempt to cure
the deficiencies identified in that order. Id.
failed to comply with or otherwise respond to the Court's
order and the deadline to do so has now passed. Accordingly,
the Court recommends dismissal of this action for the reasons
TO STATE A CLAIM
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.
sets forth numerous claims arising from events that took
place while he was housed at Pelican Bay State Prison (PBSP)
and California State Prison-Corcoran (CSP-COR).
March 2011, Plaintiff arrived at CSP-COR for the first time.
Between then and the time of filing the instant complaint,
Plaintiff has transferred to and from three different times.
CSP-COR is the central hub for the housing of homosexual
March 2011, Plaintiff was housed in building Z on yard B at
CSP-COR. He was abruptly moved to building 5. Plaintiff was
unaware at the time that the officers who worked in building
5 had a special interest in overseeing homosexual inmates.
Specifically a lead officer who had worked in the California
Youth Authority. Plaintiff was called to the podium after
placing his property in the cell he was assigned. The lead
officer began to list the “rules.” Plaintiff
questioned one of the rules and the officer stated, “I
know how to deal with your kind.” Over the next few
months, Plaintiff was targeted by frequent
“raid-like” cell searches. Often certain officers
would peek into his cell during sleeping hours. At yard
release, he was subjected to over zealous body searches and
eventually peculiar comments were made by staff.
instance, after Plaintiff was involved in a cell fight, the
officer working the control tower stated, “What was
that about? Domestic violence, huh?” Plaintiff ignored
it. A couple days later while Plaintiff was on his way to a
visit the officer stated, “Did you put on any
blush.” Plaintiff told him to “not ever speak to
me like that.” A few days later after leaving the
education department, Plaintiff said hello to an officer
working the observation tower, who responded “[y]ou are
in it for shits and grins.” Plaintiff later learned
this statement was a homosexual reference.
November 11, 2011, Plaintiff was placed in administrative
segregation for disciplinary purposes. Plaintiff believes
that staff had already begun to spread the rumor throughout
the facility that he was homosexual, and they began to refer
to Plaintiff as “Booty.” After Plaintiff was
placed in his cell, he had to wait nine hours to receive his
bedding, clothes, and towels. While Plaintiff was housed in
administrative segregation, officers attempted to have
Plaintiff cell with men they knew participated in sexually
perverse acts. Plaintiff was housed next to a homosexual and
a transgender inmate was housed in the cell directly beneath.
When Plaintiff sought medical care for an irritated scalp,
they gave him “lubricant.” Plaintiff's meals
were served on a tray with “booty boy” carved
disciplinary issue was referred to the Kings County Superior
Court. The district attorney filed charges in December 2011.
Plaintiff was given a sentence three times the average to
“teach” him a lesson. In June 2018, Plaintiff
appeared in the same court for a new charge. At the first
meeting, the court appeared attorney stated, “you keep
putting your booty on the line.”
was moved to the main administrative segregation unit
building in February. Plaintiff immediately noticed odd
behavior by staff. Plaintiff usually received his lunch in a
brown bag with missing items. On one occasion, the sergeant
stated, “I am going to put an ‘S' on your
jacket.” S is a label for a sexual deviant. Plaintiff
responded, “You'd better not put that on me. I am
no pervert.” In March 2011, Plaintiff was moved to the
security housing unit. One of the officers issuing
Plaintiff's personal property handed him a shampoo bottle
and stated, “I better not find this rammed up your
ass.” Plaintiff later discovered that the inmate he was
housed with was there for exposing himself and masturbating
to staff. Plaintiff was later sent across the street to
another institution, but was returned to CSP-COR due to a
realignment of housing mental health inmates.
January 29, 2017, Plaintiff returned to CSP-COR, 4 A yard,
for disciplinary reasons. Plaintiff was housed in building
ZR. Upon his arrival, sergeant Perez stated,
“You've been here before, right?” When
Plaintiff asked for a jumpsuit, Perez responded, “Shut
up! If you have a question, there is a chain of command,
” to which Plaintiff stated, “No. I am not going
to shut up!” Perez approached the cell and threatened
to go in. Plaintiff informed Perez he could assault him but
he “would not shut up.” Perez stated,
“That's okay. You're going to my yard
anyway.” The moment Plaintiff arrived in building ZR,
the adversity began. During mealtime, the officer passing out
trays would tell Plaintiff “[t]hey forgot yours.
I'll have to call the kitchen[, ]” or “[t]hey
forgot yours. I'll have to get one from next door.”
At first, Plaintiff would receive his meals about forty-five
minutes after everyone else and it was cold. Then, he began
to receive food trays with a strong odor. On one occasion,
Plaintiff received a tray with nothing but bread and lettuce.
The officer stated, “You're a vegetarian right[,
]” and laughed. On two occasions, Plaintiff received
his food trays with feces in it. He thereafter stopped
accepting the meals. At the same time that his meals were
being tampered with, his institutional and personal mail was
being inhibited. When Plaintiff attempted to contact the
mailroom, the lead guard responded that the books he ordered
were “lost” three times and that he forwarded the
inquiry to the mail room. An officer told Plaintiff that
“[t]hey are putting bug spray in your food.”
March 2017, while Plaintiff was housed at CSP-COR in the
administrative segregation unit, he was doing pull-ups and
heard an audible snap and a physical thump near his left
clavicle and left scapula simultaneously. Plaintiff completed
the exercise but decided to take time off. Approximately a
week later, Plaintiff began to experience severe pain in his
neck, chest, shoulders, and upper-arm on his left side.
Plaintiff noticed his clavicle was protruding where it meets
the sternum. Plaintiff requested to see a nurse. Three hours
later, Plaintiff was escorted from his cell to a holding cell
in the rotunda building. A women in medical attire introduced
herself as a “psyche technician” and asked him to
detail the issue. She instructed Plaintiff to put in a
“sick call slip” because she did not want to
radio “man-down.” Plaintiff was then returned to
his cell with no aid.
following morning, Plaintiff sought medical treatment. On
April 17, 2017, Plaintiff saw a registered nurse and
described the issue. The protruding clavicle was noted, and
he was sent for an x-ray.
April 18, 2017, Dr. Gill informed Plaintiff that the x-ray
was normal and there was no follow-up needed. Plaintiff saw a
registered nurse again around May or June 2017, and the nurse
suggested that he was “faking.” Plaintiff filed
an inmate grievance in April. Plaintiff had proof that his
books had reached the prison and proof of forged documents.
Plaintiff was interviewed at the first level by sergeant
Morrow. During the interview, it became clear that Morrow
either turned a blind eye to the misconduct or was involved,
and he refused to review the documents. After the grievance
was denied, Plaintiff submitted it to the second level
review. However, the grievance ultimately disappeared, and
when he wrote to the appeals office he was advised that it
was never resubmitted. Around this time, Plaintiff began to
seek medical care for an injury. It was crystal clear that
the medical staff were ordered not to provide care. Plaintiff
continued not to accept the “poisoned” food
2, 2017, Plaintiff was moved to building 4R. When Plaintiff
received his first breakfast tray, he noticed the chemical
smell and poured it into the toilet. When officer Salcedo
picked up the tray he smiled and said, “Was everything
good?” Sometime later, Plaintiff was served a lunch
with cheese slices and one of them was mostly covered in
blood. Plaintiff examined the wrapper and discovered it had
not been opened. However, upon further inspection, he
discovered a needle size hole.
approximately the third week of July, Plaintiff had an
interview with a lieutenant. Plaintiff explained the issues,
and he stated, “Sounds like you are just
‘bitching.' I'm going to be honest with you.
You are not going to get any help from in here. Your best bet
would be to get an outside entity.” It became
immediately evidence that the culture of staff misconduct was
a known affair and common practice among staff.
August 4, 2017, Plaintiff was transferred back to the
facility across the street. When he arrived, Plaintiff
discovered that CSP-COR had “lost” his personal
property. Plaintiff filed a grievance, but did not receive
his property until two months later.
September 18, 2017, Plaintiff saw registered nurse Lindsey,
at California Substance Abuse and Treatment Facility and
State Prison, who assessed the situation and noted a
“slight asymmetry at the left clavicle when compared to
the right.” Plaintiff was referred to a doctor.
However, Plaintiff was transferred back to CSP-COR for
disciplinary reasons before the follow-up appointment.
November 29, 2017, Plaintiff returned to CSP-COR for
disciplinary reasons and housed in 4A yard, building 4L.
Plaintiff did not know any of the officers and did not expect
the “torture” to continue. Through the months of
December 2017 to June 2018 the following took place:
While serving breakfast, Officer Shelby often claimed to have
forgotten my milk or my entire meal. He regularly stated that
he had to go next door to get it. (It became known to me that
each time I was told, “They forgot your meal. We have
to go and get it next door, ” the staff had
pre-arranged for someone to add harmful substances to my
food. In some cases, blood, feces, and other bodily
substances, but usually “bug spray.” This same
officer came to work one morning with a bunch of huge bananas
he brought from home. He and officer Salcedo made a show of
pulling the bananas from beneath the car. Officer Salcedo
said, “We bet on which you'd choose. A banana or an
apple. I bet you want a banana.” Officer Shelby
frequently made comments about “throwing your back
out.” During [an] escort he began to talk about bug
spray. “I heard you could use the stuff to clean gunk
from your headlights. Wow! Imagine what it's doing to
your body.” Around this time, I noticed my skin and
scalp became irritated. My stomach ached, my urine was
cloudy, and I had sores inside my nostrils. I also ...