United States District Court, E.D. California
ANDRE L. REVIS, Plaintiff,
STU SHERMAN, et al., Defendants.
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)
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.
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.
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.
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
SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT
First Amended Complaint is thirty-three pages long. It names
forty-five individuals as defendants. Plaintiff's main
factual allegations are as follows.
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.
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
alleges that the protocols officer Arreazola describes
routinely violated regulations in order to obtain or
substantiate state and federal funding.
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
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
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.
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
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
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 ...