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Grigsby v. Hubert

February 17, 2009

JONATHAN WESLEY GRIGSBY, PLAINTIFF,
v.
SUSAN HUBERT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND TO STATE A FIRST AMENDMENT RETALIATION CLAIM

On May 7, 2008, United States Magistrate Judge Gregory G. Hollows dismissed pro se prisoner Plaintiff Jonathan Wesley Grigsby's ("Plaintiff") Complaint for failure to satisfy Federal Rule of Civil Procedure 8. On May 27, 2008, Plaintiff filed an Amended Complaint, and on January 5, 2009, this action was reassigned to the undersigned. Based on the following, the court DISMISSES Plaintiff's Amended Complaint with leave to amend to state a First Amendment retaliation claim.

I. BACKGROUND

The Amended Complaint names 17 Defendants in their individual and official capacities, including ombudsmen, counselors and medical personnel at California Medical Facility ("CMF") - Vacaville, and ombudsmen and appeals coordinators at Salinas Valley Prison. Am. Compl. ¶¶ 99-115.

While not entirely clear, the Amended Complaint appears to allege violations of Plaintiff's constitutional rights based on the assertion that Plaintiff has been incorrectly categorized as a custody level IV inmate instead as a custody level III inmate, see id. ¶¶ 7-8, 25, and that Defendants have committed various wrongs when Plaintiff has brought this problem to their attention. To the extent the court can understand the Amended Complaint, Plaintiff alleges that various Defendants have: (1) ignored his requests to properly calculate his custody level even though they were aware of the mistake, id. ¶¶ 5, 9, 12, 21-23, 26, 41-42, 62-64; (2) denied him access to documents used to calculate his custody level, id. ¶¶ 10-13, 39; (3) fabricated and concealed documents regarding the custody level calculation, id. ¶¶ 15, 20, 69-72; and (4) determined his custody level without the benefit of documents. Id. ¶ 35. The Amended Complaint also suggests that Plaintiff was transferred from CMF - Vacaville to the psychiatric program at Salinas Valley Prison in retaliation for filing grievances. Id. ¶¶ 27-29, 47.

II. STANDARD OF REVIEW

As Plaintiff is aware from the May 7, 2008 Order, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if a plaintiff 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). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

The court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt. Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "Unless it is absolutely clear that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

III. DISCUSSION

A. Failure to State a Claim and Violation of Federal Rule of Civil Procedure 8

While not entirely clear, Plaintiff appears to make three general allegations: (1) Defendants incorrectly calculated his custody level; (2) Defendants mishandled his grievances regarding his custody level; and (3) Defendants retaliated against Plaintiff for making grievances by moving him from CMFVacaville to Salinas Valley Prison. Based on the following, the court dismisses without leave to amend Plaintiff's claims based on calculation of his custody level and mishandling his grievances. The court also dismisses with leave to amend Plaintiff's retaliation claim for failure to comply with Rule 8.

1. Incorrect Calculation of Custody Level

From what the court can discern, the Amended Complaint appears to allege that Defendants violated Plaintiff's liberty interests when they miscalculated Plaintiff as a custody level ...


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