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Davis v. Gibson

United States District Court, E.D. California

October 30, 2019

RELMON H. DAVIS, III, Plaintiff,
v.
GIBSON, et al., Defendants.

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF No. 24) FOURTEEN (14) DAY DEADLINE

          BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Relmon H. Davis, III is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         This action was initiated on August 28, 2015, in the United States District Court for the Central District of California. (ECF No. 1.) On November 30, 2015, Plaintiff's application to proceed in forma pauperis was denied and the case was dismissed after the Central District screened Plaintiff's complaint and concluded that Plaintiff's claims were legally frivolous. (ECF No. 4, at 2-3.) Plaintiff appealed, and, on November 21, 2016, the Ninth Circuit Court of Appeals reversed and remanded the case on the grounds that it was “not absolutely clear that the deficiencies in the complaint . . . could not be cured by amendment.” (ECF No. 10, at 2.) The mandate was issued on December 13, 2016. (ECF No. 12.)

         Accordingly, on December 19, 2016, the Central District re-opened this case and granted Plaintiff leave to file a first amended complaint within 30 days of the date of the order. (ECF No. 13.) On January 9, 2017, Plaintiff filed a first amended complaint. (ECF No. 14.) On May 1, 2018, this action was transferred to the Eastern District. (ECF No. 20.)

         On April 23, 2019, this Court screened Plaintiff's first amended complaint and found that Plaintiff had failed to state a cognizable claim for relief. (ECF No. 23.) Plaintiff was provided with the legal standards that applied to his claims and granted leave to amend. (Id.)

         Plaintiff's second amended complaint, filed on May 22, 2019, is currently before the Court for screening. (ECF No. 24.)

         I. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 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). 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 Serv., 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. Summary of Plaintiff's Allegations

         Plaintiff is currently housed at California Correctional Institution in Tehachapi, California. Plaintiff alleges that the events at issue took place at California State Prison, Corcoran (“CSP-COR”). Plaintiff names the following defendants: (1) Warden Dave Davey; (2) 3B Law Librarian Jane Doe; (3) Principal B. Van Klaveren; (4) Senior Librarian Eric Bender; (5) Deputy Warden/Appeals Reviewer M. Sexton; (6) Appeals Examiner K. J. Allen; (7) Government Claims Board VCGCB; and (8) Corcoran State Mailroom Staff John Doe 1.

         Plaintiff alleges as follows:

         Claim I: On July 4, 2013, Plaintiff mailed out a Certificate of Appealability to the Ninth Circuit Court of Appeals and to the United States District Court for the Central District of California. Constructive filing of the mailing and date was verified in a 119 card and a CDCR 22 form. The Ninth Circuit Court of Appeals did not receive the Certificate of Appealability. Plaintiff asserts that “[t]here was also a second mailing[, ]” but “the second mailing was also not received by the circuit court.” (ECF No. 24, at 3-4.) Plaintiff further states that his habeas petition discussed the use of false prison prisoners and discrepancies in his sentence, prosecutorial misconduct, judicial misconduct, and jury misconduct.

         Claim II: Plaintiff asserts that the Government Claims Board failed to follow its own guidelines in the acceptance of a claim “naming a date less than one year old.” (Id. at 4.) Plaintiff's claim named a filing date of August 17, 2014 and was filed with the Board, but the date was ignored. Plaintiff further asserts that: “The claim was long received, in October, naming the filing date and date of incident when false legal advisory was issued to file a claim as no claim had been filed, the date, December 3, 2013, of false legal advisory was corrected only to deny the prisoner review no fault or deficiency in part by the prisoner.” (Id. at 4-5.) Plaintiff claims that the Government Claims Board failed to respond on time and filed the claim late on September 3, 2014. Plaintiff states that the deadline to file was August 26, 2014 and the papers were filed August 17, 2014. The date his August papers were served was detailed in the claim filed with the Government Claims Board.

         Claim III: Plaintiff asserts that the “Sacramento Chief Inmate Appeals” failed to decide his 602 appeal on the merits and issues named in the appeal. Plaintiff states that he discussed two attempts to receive copies via a new mail-out procedure requiring five business days for review of an inmate's petition. The five-day period lapsed twice and twice the petition was reviewed, case number present for deadline verification. Plaintiff states that he completed the excess copy request.

         Further, Plaintiff claims that “TLR” (or Third Level Review) staff gave a false legal advisory in the original copy to the Government Claims Board for review. The Government Claims Board does not return any copies of any documents. “TLR staff” delayed the review and Plaintiff's opportunity to file a claim with the Government Claims Board. Plaintiff states that he “could not file without ...


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