Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
On October 23, 2008, the court found that plaintiff failed to comply with this court's orders directing plaintiff to file a completed application to proceed in forma pauperis and recommended that this action be dismissed. On November 10, 2008, plaintiff filed objections, wherein he detailed his efforts to submit a completed application to proceed in forma pauperis. Upon review of the docket in this action, the court finds that plaintiff has made the showing required by 28 U.S.C. § 1915(a)(1) and (2).
Plaintiff must pay the $350 filing fee. See 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff must make monthly payments of 20 percent of the preceding month's income credited to his trust account. See 28 U.S.C. § 1915(b)(2). The agency having custody of plaintiff shall forward payments from plaintiff's account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fee is paid.
On August 17, 2007, the court dismissed plaintiff's complaint with leave to amend. On December 20, 2007, plaintiff filed an amended complaint.
The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states a cognizable Eighth Amendment claim against defendants Rodriguez and Valadez, who allegedly denied plaintiff medical treatment for his asthma. See 28 U.S.C. § 1915A.
For the reasons stated below, the court finds that the complaint does not state a cognizable claim against defendants Scavetta, Park, Chirilio or Motshenbacher. Nor does the complaint state a cognizable due process claim against defendant Rodriguez or Valadez. Plaintiff alleges that he was housed in administrative segregation from March 10, 2005 to late April 2005 even though defendants had sufficient information to release him. While housed in administrative segregation, plaintiff alleges he was denied, among other things, daily showers, freedom to move without restraint, personal property, daily exercise, and contact visits. These allegations, however, fail to demonstrate "that the transfer to administrative segregation deprived him of 'the minimal civilized measure of life's necessities.'" See Aug. 17, 2007 Order (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994). Nor do they demonstrate that the transfer resulted in a change in confinement that imposed an atypical and significant hardship in relation to the ordinary incidents of prison life, and that he was subjected to this change without due process of law. See Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003).
Accordingly, it is hereby ORDERED that:
1. The October 23, 2008 findings and recommendations are vacated;
2. Plaintiff's request to proceed in forma pauperis is granted.
3. Plaintiff is obligated to pay the statutory filing fee of $350 for this action. All payments shall be collected and paid in accordance with the notice to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
4. The allegations in the pleading are sufficient at least to state a cognizable Eighth Amendment claim against defendants Rodriguez and Valadez. See 28 U.S.C. § 1915A. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a copy of the pleading filed December 20, 2007, two USM-285 forms and instructions for service of process on defendants Rodriguez and Valadez. Within 20 days of service of this order plaintiff may return the attached Notice of Submission of Documents with the completed summons, the completed USM-285 forms, and three copies of the endorsed December 20, 2007 complaint. The court will transmit them to the United States Marshal for service of process pursuant to Fed. R. Civ. P. 4. Defendants Rodriguez and Valadez will be required to respond to plaintiff's allegations within the deadlines stated in Fed. R. Civ. P. 12(a)(1). In this event, the court will construe plaintiff's election to proceed forthwith as consent to an order dismissing his defective claims against defendants Scavetta, Park, Chirilio, and Motshenbacher without prejudice.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the ...