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Portugal v. Felker

March 4, 2009

DANIEL PORTUGAL, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and 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).

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). 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.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Plaintiff names as defendants Warden T. Felker, P. Statt or Statti, who is evidently an appeal coordinator, and S.L. Chapman, a correctional counselor II at High Desert State Prison (HDSP). He also apparently seeks to sue the Chief of Inmate Appeals in Sacramento, but does not name that individual. Complaint, pp. 1, 5.

Apparently, plaintiff's "legal mail" letter directed to a Gary Jordan was returned to him with a memorandum on 8/22/08, which indicated that the letter had been opened outside his presence, and plaintiff was evidently directed to file a 602 inmate appeal.

Plaintiff states that on 8/11/08, he submitted a letter to the Internal Affairs Office of CDCR, regarding a medical staff complaint. Plaintiff alleges, without setting forth any specific incident, that he has been intimidated, discriminated against and threatened with physical harm by unnamed members of the medical staff. Further, these (or other) unnamed individuals have made "quite clear" that if plaintiff "wrote them up," plaintiff would be assaulted, and institutional security would somehow otherwise breached. Id., at 3.

Plaintiff submitted an appeal on 9/11/08, which was rejected as a duplicate and untimely (beyond 15-day limit). Plaintiff also complains that it was rejected as a staff complaint against defendant Felker for his legal mail having been opened and read outside his presence. Plaintiff also contends that he filed an earlier appeal on 7/06/08, about his legal mail being opened outside his presence, but that somehow defendant Statti was deliberately indifferent in rejecting, on 9/12/08, one of the appeals as a duplicate. Plaintiff claims that the earlier appeal about the improper opening of legal mail did not lead to the matter being corrected and his numerous appeals about the matter have been returned with no response in violation of his constitutional rights. Complaint, pp. 4-5.

Plaintiff seeks money damages and injunctive relief in the form of being transferred to a facility where he can keep receiving visits from family and friends.

Plaintiff's complaint violates Rule 8 of the Federal Rules of Civil Procedure in failing to make, particularly with regard to his allegations against unnamed medical or other staff, "sufficient allegations to put defendants fairly on notice of the claims against them." McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991)). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (amended complaint with vague and scanty allegations fails to satisfy the notice requirement of Rule 8.) Plaintiff must do more than allege in a vague and conclusory way that he has been subjected to, for example, threats of physical harm from unidentified people. Moreover, to the extent that he seeks to make a claim of retaliation, a plaintiff must plead facts which suggest that retaliation for the exercise of protected conduct was the "substantial" or "motivating" factor behind the defendant's conduct. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). The plaintiff must also plead facts which suggest an absence of legitimate correctional goals for the conduct he contends was retaliatory. Pratt at 806 (citing Rizzo at 532). Verbal harassment alone is insufficient to state a claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). However, even threats of bodily injury are insufficient to state a claim, because a mere naked threat is not the equivalent of doing the act itself. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Mere conclusions of hypothetical retaliation will not suffice, a prisoner must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 (n. 1) (10th Cir. 1990).

As to defendant Chapman, the court cannot locate allegations within the complaint which specifically reference this individual. The Civil Rights Act under which ...


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