Revis v. Sherman

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM OBJECTIONS, IF ANY, DUE WITHIN 21 DAYS (ECF No. 13)

         Andre Revis (“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 December 13, 2018. (ECF No. 1). Plaintiff's complaint appeared to challenge certain drug testing at the prison, and his Rules Violation Reports (RVRs) that came from that testing. The Court screened Plaintiff's complaint, found that it stated no cognizable claims, and gave Plaintiff leave to amend. (ECF No. 10). Plaintiff filed a First Amended Complaint (“FAC”) on August 30, 2019 (ECF No. 13), which is before this Court for screening.

         For the reasons described below, the Court recommends that this action be dismissed, with prejudice, for Plaintiff's failure to state a claim. Plaintiff may file objections to these findings and recommendations within twenty-one days from the date of service of this order.

         I. SCREENING REQUIREMENT

         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. 6), 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. § 1915(e)(2)(B)(ii).

         A 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.

         Pleadings 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 Iqbal).

         II. SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT

         Plaintiff's First Amended Complaint is thirty-three pages long. It names forty-five individuals as defendants. Plaintiff's main factual allegations are as follows.

         On Wednesday, May 8, 2019, Plaintiff endured the last of a series of mandatory random drug tests, under the mandatory random urinalysis program. This program dated back to January 2015. As part of this program, correctional official/defendant A. Arreazola conducted the first capricious urinalysis testing contrary to the statutory requirements. This testing is a condition for inmate participation in certain programs and activities.

         Plaintiff refers to a Rules Violation Report (“RVR”) narrative regarding his first mandatory drug test. On January 6, 2015, correctional officer Arreazola ordered Plaintiff to submit urine for mandatory random urinalysis program. Plaintiff complied. He submitted to a clothed body search. No. contraband was discovered. The officer placed latex gloves on his hands and instructed Plaintiff how to break the tamper device on the bottle. The officer stated in the narrative that he saw Plaintiff urinate into the bottle and lock the lid closed. He then labeled and secured the bottle. He showed Plaintiff the name and CDCR number printed on the label, and Plaintiff indicated that the information was correct. The officer stated that he maintained sole possession of the sample until he placed it into an evidence refrigerator.

         Plaintiff alleges that the protocols officer Arreazola describes routinely violated regulations in order to obtain or substantiate state and federal funding.

         Plaintiff states that he is “challenging the many violations corrupt policies/procedures used in order to obtain an (R.V.R.) guilty finding from/for ‘urine collected.'”

         On January 12, 2018, Plaintiff was summoned once again to expose himself under undue duress/humiliation of an arbitrary and capricious weekly urinalysis test to monthly urinalysis drug testing. Plaintiff seized the opportunity to serve notice surrounding the C-facility officials' systematic illicit illegalities and professional disregard for the penal code and regulations regarding collection of an inmate's specimen. Plaintiff's specimen was provided to a number of different contracted laboratory, who collected informational data on Plaintiff without authorized consent from Plaintiff. Prison authorities distributed Plaintiff's many urine specimens in order to circumvent prison officials limited capacity for field testing. “These urinalysis for laboratory testing are not certified by and/or trained testing laboratory personell [sic] for collection of or for urinalysis laboratory processing protocol(s) and certification as official's employed by C.D.C.R. to perform/collect urinalysis….”

         According to the narratives in various RVRs, it appears that, over the course of three years, Plaintiff was required to provide urine specimens in highly trafficked and unsanitary areas, with no consideration of the privacy of Plaintiff. Some inmates stood by clothed or unclothed while other inmates urinated or were standing in boxer shorts preparing to urinate. It was like an assembly line, where certain defendants disregarded urine collection protocols. This left the possibility of contamination. Defendants J. Aerrmann, B. Urban, R. Walters, S. Khamvongsa, R. Hopkins, E. Hennesay, T. Essepian, and A. Arreazola all collected urine specimens from Plaintiff under very adverse conditions resulting in a material and adverse effect on the welfare of Plaintiff due to the misleading typed narratives.

         The reviewing supervisors all approved of their subordinates' methods of operation. They often substantiated the narratives in RVRs. Other defendants never once considered the inadequate collection and testing methods in obtaining their desired conclusions.

         The findings were then certified by senior hearing officials. Plaintiff suffered punishment including the loss of good time, the loss of work assignments, loss of yard/exercise, confinement to quarters, loss of canteen, and loss of other privileges. There was only the mere mention of drug treatment enrollment, i.e., alcoholics/narcotics anonymous or substance abuse education.

         During each RVR disciplinary hearing, Plaintiff stated that it was pain medication related and pled not guilty. Drug addiction that significantly limits a major life activity is a recognized disability under the ADA. But this qualification protects only those addicts not currently using illegal drugs or are in the process of completing supervised drug rehabilitation programs. Defendants ...