UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 12, 2009
CLEO WESTERFIELD, PLAINTIFF,
M.T.A. SPINKS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Raymond C. Fisher, United States Circuit Judge
ORDER GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS AND SCREENING COMPLAINT UNDER 28 U.S.C. § 1915A.
Plaintiff Cleo Westerfield 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
Mr. Westerfield has submitted a declaration that substantially complies with the requirements of 28 U.S.C. § 1915(a). See Docket No. 3. Accordingly, his request to proceed in forma pauperis is granted.
Mr. Westerfield is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Going forward, Mr. Westerfield will be obligated for monthly payments of 20 percent of the preceding month's income credited to his prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in his account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
II. Screening of Complaint
Under 28 U.S.C. § 1915A, the 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 are liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). This Court must therefore determine whether Mr. Westerfield's complaint states a cognizable claim for relief with respect to each named defendant.
The Court has reviewed Mr. Westerfield's complaint and determined that it does not state any cognizable claims for relief. First, Mr. Westerfield's complaint describes the specific facts giving rise to his claims only as to Defendant Pazos and Defendant McGill. Although Mr. Westerfield names other defendants, he does not give those defendants notice of the grounds upon which his claim rests. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Mr. Westerfield must show that each defendant named in the complaint committed conduct which deprived plaintiff of a federal right. See Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007). In order to do so, Mr. Westerfield must allege specific facts as to each defendant, and not state that a defendant has violated his rights in the abstract.
Mr. Westerfield claims that Defendant Pazos violated his First Amendment rights by falsifying an appeals process document. Plaintiff has not shown a link between defendant Pazos' conduct and the injury to plaintiff's First Amendment rights. See Kwai Fun Wong v. United States, 373 F.3d 952, 966-67 (9th Cir. 2004).
Mr. Westerfield claims that Defendant McGill violated his First Amendment rights by conducting a retaliatory cell search. In order to show a violation of a First Amendment right through retaliation, five elements must be shown: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Mr. Westerfield did not claim that Defendant McGill's cell search did not reasonably advance a legitimate correctional goal.
Because Mr. Westerfield's complaint fails to allege legally sufficient facts to state a cognizable constitutional claim against any defendant, his complaint is dismissed without prejudice to Mr. Westerfield filing an amended complaint within 30 days of this order that states cognizable claims against the particular defendant(s) he claims violated his constitutional rights.
Accordingly, for the reasons above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. No initial partial filing fee will be assessed. The Director of the California Department of Corrections or his designee, however, shall collect payments from plaintiff's prison trust account in an amount equal to 20 percent of the preceding month's income credited to the prisoner's trust account and shall forward those payments to the Clerk of the Court each time the amount in the account exceeds $10.00, in accordance with 28 U.S.C. § 1915(b)(2), until a total of $350.00 has been collected and forwarded to the Clerk of the Court. The payments shall be clearly identified by the name and number assigned to this action.
3. Plaintiff's complaint is DISMISSED without prejudice as to all defendants. Plaintiff is granted 30 days from the date of this order to file an amended complaint asserting cognizable claims for relief.
© 1992-2009 VersusLaw Inc.