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Lopez v. Dion

March 20, 2009

RAFAEL LOPEZ, PLAINTIFF,
v.
R. DION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Raymond C. Fisher United States Circuit Judge

ORDER DENYING WITHOUT PREJUDICE REQUEST TO PROCEED IN FORMA PAUPERIS AND SCREENING COMPLAINT

Plaintiff Rafael Lopez is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

I. Request to Proceed In Forma Pauperis

A prisoner who brings a civil action in forma pauperis must submit a certified copy of his inmate account statement for the six month period immediately preceding the date that the prisoner filed his complaint. See 28 U.S.C. § 1915(a)(2). Here, plaintiff failed to include the certified inmate account statement with his initial request to proceed in forma pauperis, see Docket No. 2, which he filed with his complaint, see Docket No. 1, so this court denied his request to proceed in forma pauperis without prejudice, provided him a court-approved in forma pauperis application form and instructed him to submit a certified account statement, see Docket No. 4. This court received a completed application form and certified account statement on October 20, 2008, but the certified account statement was for the six month period from April 15, 2008 through October 15, 2008, i.e., not the six months immediately preceding the filing of the complaint on September 8, 2008. See Docket No. 8.

Although plaintiff did not appear to have control over the date range reflected in the account statement -- plaintiff signed the certificate of service on October 7, 2008, and the trust account statement was completed by a prison official on October 15, 2008 -- the statement does not reflect whether plaintiff received deposits during a more than one month period relevant to calculating whether he must pay an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). If plaintiff wishes to proceed with this case, he must, within 30 days from the service date of this order, file a new application to proceed in forma pauperis that includes this information. The court will direct the Clerk of Court to send plaintiff a new court-approved in forma pauperis application form. When plaintiff submits the completed application form to the prison official to generate the account statement, he should request that the official complete the form and generate the account statement for the six month period from March 8, 2008 through September 8, 2008.

If his application is approved, plaintiff will be required to pay the full statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). He may be assessed an initial partial filing fee, see 28 U.S.C. § 1915(b)(1), and thereafter will be obligated for monthly payments of 20 percent of the preceding month's income credited to his prison trust account, which will be forwarded to the Clerk of the Court each time the amount in his account exceeds $10.00, until the filing fee is paid in full, see 28 U.S.C. § 1915(b)(2). Moreover, as the court explains below, in deciding whether to proceed, plaintiff may wish to consider whether he will be able to recover money damages on his claims.

II. Screening of Complaint

Under 28 U.S.C. § 1915A, this court must "review, before docketing . . . or . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court [must] identify cognizable claims or dismiss . . . any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."

28 U.S.C. §1915A(b). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). This court must therefore determine whether plaintiff's complaint, liberally construed, states a cognizable claim for relief with respect to each named defendant.

The court has reviewed plaintiff's complaint and finds it states cognizable claims for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) against both defendants. Based on plaintiff's complaint, which was prepared by filling in blanks on a complaint form, and the various exhibits plaintiff appended to it, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (holding courts may consider material that is properly submitted as part of the complaint in determining if the complaint states a claim upon which relief can be granted), the court distills the following factual allegations:

* On March 27, 2007, plaintiff was transferred from the general population to the administrative segregation ("AD/SEG") unit by Lt. J.C. Blim, who is not a named defendant, in retaliation for "a 602 appeal" (which appears to be an administrative grievance) plaintiff had previously filed. Complaint, p. 3.

* When plaintiff was transferred to AD/SEG, he retained his prisoner status level of "A-1-A." Complaint, p. 5 & Ex. A, p. 4.

* While in AD/SEG, unspecified prison officers insisted plaintiff share a cell with his "enemy." He refused. Complaint, pp. 3, 5 & Ex. A, p. 4.

* In retaliation against plaintiff for refusing to share a cell with his enemy and based on false statements by unspecified prison officials, defendant Dion and unspecified members of the prison's classification committee changed plaintiff's ...


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