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Miller v. McDonald

April 28, 2009

ERNEST MILLER, PLAINTIFF,
v.
MIKE MCDONALD, 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, in addition to High Desert State Prison (HDSP) Warden Mike McDonald, the following HDSP Appeals Coordinators: Correctional Counselor II (CCII) R. Dreith; CCII T. Robertson; CCII P. Statti. Plaintiff, who describes himself as "a black man," alleges that on March 9, 2009, defendants Dreith, Robertson and Statti denied his 602 inmate appeal "again due to racial discrimination." Complaint, p. 3. Plaintiff contends that the defendants denied (by which he may mean rejected) the undescribed inmate appeal on grounds that it was a duplicate appeal containing the same issue he raised while housed at CSATF*fn1 on November 27, 2005. Id. Plaintiff states that pursuant to CAL. CODE REGS. tit.xv, § 3084.4(a), upon a determination of abuse of the grievance filing system, an inmate is restricted in the filing of appeals for a six-month period, not for four years. Id. The regulation at issue sets forth that once an inmate has been determined to have abused the prison grievance system by an excessive number of filings: the chief, inmate appeals, shall authorize the appeals coordinator to prepare a notice restricting the inmate to one appeal per month for six consecutive months.

CAL. CODE REGS. tit.xv, § 3084.4(a)(3).

The court notes that the provision at § 3084.4(a)(4) immediately following states that:

Any subsequent violations of the appeal restriction shall result in an extension of the restriction for an additional six month period.

Thus, on the face of it, the undersigned observes, it appears that the initial six-month restriction period can be extended beyond the initial six-month period under certain circumstances.

Plaintiff contends that an inmate has the right to appeal any CDCR*fn2 decision. In addition to claiming that defendants are violating state regulations, plaintiff contends that the denials [rejections] of his grievances are racially motivated. Plaintiff asserts that he, as an African American prisoner, is a member of a protected class and that his equal protection rights under the Fourteenth Amendment are being violated. Complaint, p. 4. He asserts that CDCR discriminates against "African American prisoners and other races." Id., at 3.

In the first place, plaintiff's claims are too vague and conclusory. Rule 8 of the Federal Rules of Civil Procedure requires "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's claims are too broad and insufficiently supported to provide defendants with the requisite notice. Also, while plaintiff may attach exhibits to his complaint he may not expect the court to ferret through them to determine precisely what plaintiff's claims are; plaintiff must set forth colorable allegations within ...


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