Reed v. James, et al.
Filing
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ORDER DISCHARGING 9 Order to Show Cause and ORDER GRANTING 12 Motion For Leave to File an Amended Complaint, signed by Magistrate Judge Gary S. Austin on 11/9/2011. The Clerk's Office is directed to file the First Amended Complaint Lodged with the Court on November 7, 2011. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEPHEN C. REED,
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Plaintiff,
v.
C/O JAMES, et al.,
Defendants.
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CASE NO. 1:10-cv-00073 LJO GSA PC
ORDER DISCHARGING ORDER TO SHOW
CAUSE AND GRANTING MOTION FOR
LEAVE TO FILE AN AMENDED
COMPLAINT
(ECF No. 13)
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Screening Order
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983. This proceeding was referred to this Court by Local Rule 302
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pursuant to 28 U.S.C. § 636(b)(1).
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Plaintiff is an inmate in the custody of the California Department of Corrections and
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Rehabilitation (CDCR) at Corcoran State Prison. Plaintiff brings this civil rights action against
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defendant correctional officials employed by the CDCR at Corcoran State Prison. Plaintiff names
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the following individual defendants: Lieutenant Munoz; Lt. Kavanaugh; Sergeant Gonzales;
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Correctional Officer (C/O) James. Plaintiff’s allegations stem from disciplinary charges filed against
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Plaintiff for possession of a weapon.
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On August 24, 2008, C/O James subjected Plaintiff to a body search. C/O James discovered
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and confiscated “an ordinary ink pen” from Plaintiff. Plaintiff alleges that C/O James falsely charged
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Plaintiff with possession of a weapon. In the written report, C/O James indicated that, two days
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prior, Sgt. Gonzales had trained her “regarding inmates using these pens as stabbing weapons.”
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(Compl. p. 3B1.) Plaintiff specifically alleges that James “knew what she confiscated was clearly
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a standard writing ink-pen and not a deadly weapon.” (Id.)
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Sgt. Gonzales admitted that he trained C/O James regarding the use of ink pens as weapons,
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but denied accusations that he received confidential information regarding the possession of these
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weapons by Black inmates. Plaintiff specifically alleges that Sgt. Gonzales, as the Facility Sergeant,
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denied Plaintiff due process be allowing C/O James to falsely accuse Plaintiff. (Compl. p. 3B2.)
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Lt. Munoz allegedly violated Plaintiff’s due process rights by falsifying a lock-up order. Lt.
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Munoz falsely reported that Sgt. Gonzales received confidential information regarding the use of ink
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pens as weapons by Black inmates. (Id.) Lt. Kavanaugh allegedly violated Plaintiff’s due process
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rights by finding Plaintiff guilty of possession of a weapon “arbitrarily on the mere ‘words’
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misleading info of his correctional officer and/or without following procedures: in which ‘second
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level review’ determined said ink pen was an ordinary ink pen and had not been altered in any form
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or fashion into that of a deadly weapon, nor was it considered contraband.” (Compl. p. 3B4.)
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On March 23, 2011, an order to show cause was entered, directing Plaintiff to show cause
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why this action should not be dismissed pursuant to Heck v. Humphrey, 512, U.S. 477 (1994), on
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the ground that Plaintiff had not alleged any facts indicating that his disciplinary conviction had
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been reversed, expunged or otherwise invalidated. Plaintiff filed a response to the order to show
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cause, and a motion for leave to file an amended complaint. Along with his motion, Plaintiff lodged
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a proposed first amended complaint.
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In his response to the order to show cause, Plaintiff indicates that his prison disciplinary
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conviction was reversed on the ground that the reporting employee failed to document how the pen
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had been made into a weapon and that the pen was, “in fact, a pen with a metal tip typical of pens
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of that type.” Plaintiff attaches as an exhibit to his response to the order to show cause A copy of
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the decision on appeal of his prison disciplinary hearing. Plaintiff also attaches a copy of the
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modification order issued by the Inmate Appeals Office. The modification order indicates the
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following:
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Per Second Level appeal decision, the Chief Disciplinary Officer of
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Facility 3A shall order CDC 115, Rules Violation Report (RVR), Log
# 3A-08-08-060, dated August 24, 2008, for the specific act of
Possession of a Deadly Weapon reissued and reheard based on a due
process violation. Specifically, there is no documentation to show
that the appellant was able to view the evidence.
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(Exh. E. to Response to Order to Show Cause.) The RVR was reheard, and Plaintiff was found not
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guilty on the ground that the evidence was not properly described by the reporting employee.
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The Court finds that Plaintiff has shown good cause why the order to show cause should be
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discharged. Plaintiff has alleged facts indicating that his disciplinary conviction has been invalidated
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on due process grounds. The order to show cause should therefore be discharged.
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Pursuant to Federal Rule of Civil Procedure 15(a), Plaintiff may amend the complaint once,
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as a matter of right, so long as a responsive pleading has not been filed. No Defendant has been
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served, and a responsive pleading has not been filed. Plaintiff is therefore granted leave to file an
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amended complaint.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The March 23, 2011, order to show cause is discharged.
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2. Plaintiff’s November 7, 2011, motion for leave to file a first amended complaint is
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granted.
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3. The Clerk’s Office is directed to file the first amended complaint lodged with the Court
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on November 7, 2011.
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IT IS SO ORDERED.
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Dated:
6i0kij
November 9, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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