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). "[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).
Named as defendants are M. Cate, T. Felker, M. MacDonald, E. Sandoval, D. Davey, Mendonca, R. Haynes, C. Hahns, S. Head, Shaffer, D. Dharlinque, Gamberg, D. Nichols, R. Beeler, O. Ceretti, McBride, Schwab and Cortright.
Plaintiff alleges that on June 28, 2009, he was housed in the gym at High Desert State Prison (HDSP). While in the gym, another inmate threatened to harm plaintiff. Plaintiff was taken to the office of defendant Shaffer to discuss his safety concerns. Defendant took the name of the inmate who had threatened plaintiff, put plaintiff in a holding cage, and then went to the gym to speak to this inmate. Approximately twenty minutes later, defendant Shaffer left to go home due to a shift change.
One half hour later, plaintiff was still in the holding cage when an alarm went off. Defendant Hahns walked by and joked to plaintiff, "don't go anywhere." Moments later, defendant Schwab began making derogatory statements to plaintiff regarding his fear of returning to the gym.
Twenty minutes later, defendant McBride approached plaintiff with a bed move slip. Defendant Beeler also entered the office where plaintiff was still being held in the cage. Defendant McBride told plaintiff that he was going to the gym. When plaintiff refused to leave the cage, defendant McBride locked it back up and said, "you're going to piss a whole lot of people off around here with all the work we gotta do."
Twenty minutes later, plaintiff was removed from the cage and taken into the Program Sergeant's office. Defendants Haynes and Head were in the office. Defendant Haynes asked plaintiff why he was refusing to go to the gym. Plaintiff explained the situation to him.
Defendant Head asked plaintiff if he knew the consequences of refusing to accept a bed move (apparently plaintiff was being offered a move to a different bed in the gym). Defendant ...