The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
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).
The caption of the complaint names the following defendants: Cate, Martel, Johnson, Austin, McCarthy, Bond, Scer, White, Gomez, Hudgins and Baker. All defendants, but for Cate, are employed at Mule Creek State Prison (MCSP). In his statement of claims, plaintiff identifies other defendants. For example, plaintiff refers to a defendant Martinez. See Complaint, p. 6, ¶ 12. The court will only discuss claims against those persons as to whom it is clear plaintiff intends to name as defendants.
The complaint alleges that upon his transfer to MCSP, plaintiff was wrongly placed and retained on C status. Plaintiff alleges that he was placed in C status by defendants at MCSP because they were conspiring with prison officials at Pleasant Valley State Prison, who wanted to intimidate and harass plaintiff based on disciplinary proceedings that had been resolved in plaintiff's favor. Plaintiff alleges that defendants at MCSP made him wait to attend his Classification Committee hearing in the yard on a day that it was 100 degrees outside and the air was smoky due to forest fires. As a result of having to wait outside in the heat, plaintiff suffered an asthma attack that lasted for three days.
Plaintiff also alleges that he was forced to attend a disciplinary hearing at MCSP for an offense that had previously been adjudicated in his favor at PVSP. Before the hearing, plaintiff was forced to stand in a cage for 2 1/2 hours contrary to medical orders that plaintiff not stand or sit for more than fifteen minutes. Plaintiff was then placed in fraudulent disciplinary detention for ten days.
Plaintiff alleges that on January 26, 2009, he arrived to court 2 1/2 hours late because he was wrongly harassed and handcuffed by defendant White. Defendant Gomez then wrongly told his superiors that plaintiff did not want to go to court that day. As a result, the transportation officers were agitated. Defendant Gomez also wrote a disciplinary report falsely charging plaintiff with refusing to go to court. As a result, plaintiff lost time and work credits. Defendant Gomez acted in retaliation against plaintiff who was going to court for assaulting staff.
Plaintiff Hughes delayed plaintiff's law library access so that he could not prepare for his court case. Defendant Austin caused plaintiff's property to be packed in such a manner that caused plaintiff to lose books and documents supporting his case.
Plaintiff's complaint contains the following legal claims. In claim one plaintiff alleges an Eighth Amendment claim. Plaintiff alleges that defendants violated his rights by failing to monitor his back, g.i. track, shoulders and asthma. In claim two plaintiff alleges that as a result of the supervisory defendants failure to conduct proper training, he did not receive adequate medical care. In claim three plaintiff alleges a violation of the Americans with Disabilities Act (ADA). Plaintiff alleges that defendants violated the ADA by providing him with a job environment that aggravated his back problems. Plaintiff alleges that defendants further damaged his spine when they kicked, stomped and stood on his spine and pulled his head up while pressing their feet on his back. In claim four, plaintiff alleges a violation of state law.
Plaintiff's legal claims do not encompass all of his factual allegations. For example, plaintiff makes no legal claim regarding his alleged denial of access to the law library, or loss of legal property. The court will only ...