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Cole v. M. Sawaya

United States District Court, E.D. California

November 20, 2019

WALTER L. COLE, Plaintiff,
v.
M. SAWAYA, et al., Defendants.

          ORDER

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner at California State Prison Sacramento (CSP-SAC), under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, and a request to proceed in forma pauperis. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the following reasons, the court grants plaintiff's request to proceed in forma pauperis but finds that the complaint, as framed, does not state a cognizable claim against any of the named defendants. Accordingly, the complaint will not be served. Instead, plaintiff will be granted leave to file a First Amended Complaint within thirty days.

         II. In Forma Pauperis Application

         Plaintiff has submitted an affidavit and his prison trust account statement that make the showing required by 28 U.S.C. § 1915(a). See ECF No. 2. Accordingly, plaintiff's request to proceed in forma pauperis will be granted.

         Plaintiff must still pay the statutory filing fee of $350.00 for this action with periodic deductions from his prison trust account. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         III. Legal Standards for Screening Prisoner Civil Rights Complaint

         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). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).

         Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.'” Iqbal at 678 (quoting Twombly at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (quoting Twombly at 557).

         “A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. '” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). See also Fed.R.Civ.P. 8(e) (“Pleadings shall be so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         IV. Screening of Plaintiff's Complaint

         A. DEFENDANT SAWAYA

         1. Plaintiff's Allegations

         Plaintiff makes several allegations against Correctional Officer M. Sawaya. Plaintiff alleges that on January 27, 2015, he was released from his cell to report to a medical ducat. As plaintiff was leaving the building, Sawaya stopped him to conduct a search. Sawaya removed plaintiff's wallet from his back pocket. Plaintiff states that he keeps his phone book and legal documents in his wallet. While Sawaya was searching plaintiff's property, plaintiff began talking with Correctional Officer Carling about obtaining a lower bunk. After about ten minutes, plaintiff asked Sawaya why he was reading plaintiff's phone book. Sawaya told plaintiff not to worry and to keep talking with Carling. Plaintiff stated under his breath that “it's too early for all of this fucking shit.” ECF No. 1 at 4 (minor edits).

         Sawaya allegedly went into a “rampage, ” told plaintiff that he couldn't say “fuck me, ” and ordered plaintiff to turn around to be cuffed. Plaintiff was wearing medical wrist braces to treat his carpal tunnel syndrome and ganglion cysts. Sawaya told plaintiff to “take that shit off” but plaintiff explained that the braces were medically required. Sawaya repeatedly “tried to force” the handcuffs around plaintiff's braces, causing him “extreme pain” and apparently breaking plaintiff's watch. Id. at 4, 6. When plaintiff offered to “just walk to the sallyport cages, ” Sawaya told him to start walking. Once there, Sawaya directed plaintiff to strip for an unclothed body search, placed plaintiff's clothing on top of a locker and left plaintiff standing naked inside a cold cage while he went to talk with another officer. Plaintiff was humiliated and freezing and had to ask another officer for his ...


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