The opinion of the court was delivered by: Helen Gillmor Chief United States District Judge
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A(b)(1) WITH LEAVE TO AMEND
On September 16, 2008, Plaintiff Phillip Craig filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983.*fn1 In his Complaint, (Doc. 1), Plaintiff alleges he has been wrongfully denied regular access to the telephone. Plaintiff names the Solano County Jail, and the Solano County Sheriff, Lieutenant Marsh, in his official capacity.
For the following reasons, the Complaint is DISMISSED for Plaintiff's failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1).
Plaintiff Phillip Craig is a state prisoner who, at all times relevant to this action, was incarcerated in Solano County Jail (Complaint ("Compl."), at 2-3, Doc. 1.)
Plaintiff sets forth one cause of action in his Complaint. (Id.) Plaintiff complains that Defendants have wrongfully denied him regular access to the telephone, providing him with one telephone call during a five week period beginning on August 1, 2008, in violation of his constitutional rights. (Id. at 3.) Plaintiff claims that Solano County has an inconsistent policy regarding access by "pro per" inmates to the telephone, and alleges that the telephone policy has changed three times since August 1, 2008. (Id.) He asserts that deputies at the jail did not allow Plaintiff regular use of the telephone because they did not "feel like doing it now." (Id.)
Plaintiff names the Solano County Jail and Lieutenant Marsh in his professional capacity as Solano County Sheriff.
Plaintiff seeks injunctive relief in the form of a court order directing the Solano County to formulate a uniform policy regarding prisoner access to the telephone. (Id. at 3.)
STATUTORY SCREENING OF THE COMPLAINT
A federal district court is required to screen any case in which a prisoner seeks redress from 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 a plaintiff raises 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) and (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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 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 claim fails to state a claim upon which relief may be granted if it appears that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, Inc., 651 F.2d 1289, 1294 (9th Cir. 1981).
During screening, the court must accept as true the allegations of the complaint, Hosp. Bldg. Co. v. Rex Hosp. Tr., 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); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003) (the court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt). The court is not required to accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
If the court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 66 F.3d 245, 248 (9th Cir. 1995). A district court should not, however, advise the litigant on how to cure the defects. Such advice "would undermine district judges' ...