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Warner v. McMahon

July 17, 2009

LANCE WARNER, PLAINTIFF,
v.
M. MCMAHON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James L. Robart United States District Judge

ORDER

Plaintiff Lance Warner is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This matter comes before the court on Mr. Warner's application to proceed in forma pauperis and on the court's independent obligation to screen complaints brought by prisoners. For the following reasons, the court GRANTS Mr. Warner's application to proceed in forma pauperis (Dkt. # 12) and DISMISSES IN PART Mr. Warner's first amended complaint (Dkt. # 9) with leave to file a second amended complaint within 30 days of this order. If Mr. Warner declines to file a second amended complaint, the court will direct service of his first amended complaint, as discussed below.

I. ANALYSIS

A. Application to Proceed In Forma Pauperis

Mr. Warner requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Having reviewed Mr. Warner's application to proceed in forma pauperis (Dkt. # 12), the court determines that Mr. Warner has met the showing required by § 1915(a). Accordingly, the court GRANTS the application to proceed in forma pauperis. Mr. Warner has already paid in full the statutory filing fee of $350.00 for this action; however, because Mr. Warner has made the requisite showing, the court may direct service of the summons and complaint by the U.S. Marshal, as discussed in the court's previous order.

In accordance with the above and good cause appearing, the court ORDERS as follows:

1. Mr. Warner's application to proceed in forma pauperis is GRANTED;

2. The Clerk of the Court is directed to serve a copy of this order and a copy of Mr. Warner's application to proceed in forma pauperis on the Director of the California Department of Corrections via the court's electronic case filing system (CM/ECF); and

5. The Clerk of the Court is directed to serve a copy of this order on the Financial Department, United States District Court, Eastern District of California, Sacramento Division.

B. First Amended Complaint

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). Courts 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.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, 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." Id. "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). "Specific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotations omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id. at 94, and construe the pleading in the light most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The gravamen of Mr. Warner's first amended complaint is that his Eighth and Fourteenth Amendment rights were violated when prison staff subjected him to unsafe conditions on May 27, 2004, ...


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