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Lopez v. Schwarzenegger

October 5, 2009

ARNOLD RICK LOPEZ, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, 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).

The court will find that plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).*fn1 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 evidently 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). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

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, 96 S.Ct. 1848 (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, 89 S.Ct. 1843 (1969).

Plaintiff names nearly 30 defendants, including Governor Schwarzenegger, CDCR*fn2 Secretary Matthew Cate and Kings County Superior Court Judge Peter Schultz, in wide-ranging allegations that apparently cover a period from February, 2000, through April of 2009, at least some of which have apparently been the subject of earlier actions brought by plaintiff, although that is not clear. Plaintiff begins with an elaborate detailing of the state prison procedures required for an inmate to be validated as a gang member, associate or affiliate. Complaint, pp. 5-7. Plaintiff then traces back to his February 2, 2000, placement in segregation at High Desert State Prison (HDSP), after which he was validated as a member of the Northern Structure prison gang and sent to the security housing unit (SHU), all in the absence of procedural due process protections to which he believes he was entitled. Id., at 8. Plaintiff maintains he has been segregated as an improperly validated prison gang member since February of 2000. Id., at 7. Apparently, in December of 2004, a classification staff representative pointed out the deficiencies of the support for plaintiff's SHU term because the gang validation requirements were not met. Id. Nevertheless, in 2005, plaintiff was once again allegedly deprived of due process, and in retaliation CDC 128b chronos apparently indicating the deficiencies were replaced by fraudulent ones. Id., at 9.

June 8, 2006 marked six years from the date of the last evidence relied on to validate plaintiff as a gang member, at which point plaintiff maintains that he was entitled to be classified as "inactive." Complaint, p. 9. Nevertheless, following an October 19, 2006, classification hearing wherein plaintiff fruitlessly sought once again to enter hand-written objections as he had at prior hearings, plaintiff was ultimately validated as an active gang member based on an unreliable confidential memorandum dated June 8, 2006. Id., at 10-12.

Plaintiff goes on to set forth his efforts to rectify what he believes to be the defects in the determination of prison staff/officials that he is an active gang member, including having filed a habeas corpus petition in state court, challenging the matters related to his being denied inactive review for another six years in 2007. Complaint, pp. 12-15. Plaintiff seeks to implicate Judge Schultz for alleged violations of due process and equal protection when the judge required plaintiff to once again exhaust administrative remedies and ordered a rebuttal argument in writing and declaring that failure to provide one would be deemed a waiver. Id., at 14-15, 22-23. Plaintiff drifts far afield to also allege, inter alia, that defendant Correctional Officer (C/O) Yanat wrongly shut down law library access on April 20, 2005. Id., at 16. Plaintiff then goes on to allege that he was issued a false CDC-115 by defendant Yanat after plaintiff submitted an April 21, 2005, grievance regarding the law library shut down on the previous day. Id., at 17, 23. Plaintiff alleges deprivation of due process regarding the prison disciplinary hearing procedures.

Id., at 17-18.

Plaintiff's complaint will be dismissed with leave to amend for several reasons.

In the first place, plaintiff's complaint violates Fed. R. Civ. P. 8(a)(2), which requires a short and plain statement of the claim showing entitlement to relief. Rule 8 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). The complaint in this action illustrates the "unfair burdens" imposed by complaints, "prolix in evidentiary detail, yet without simplicity, conciseness and clarity" which "fail to perform the essential functions of a complaint." McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996). Moreover, in asserting his multiple, often unrelated, claims against different defendants, plaintiff presents the kind of "mishmash of a complaint" that has been roundly repudiated. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) ...


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