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Divine-Allah v. Schwarzenegger

January 14, 2010

GIFT DIVINE-ALLAH, PLAINTIFF,
v.
GOVERNOR 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).

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, __ U.S. __, 129 S.Ct. 1937, 1949 (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).

It is not clear whom plaintiff intends to name as defendants. The caption of the complaint lists the following defendants: Governor Schwarzenegger, Attorney General Brown, California State Controller, Secretary of the California Department of Corrections and Rehabilitation (CDCR) Tilton, CDCR Under Secretary, CDCR Chief of Inmate Appeals. In the section of the complaint where plaintiff is asked to name his defendants, he has identified CDCR Secretary Tilton, Sierra Conservation Center (SCC) Warden Clay, Jamestown Warden Vasquez, and the following employees at Wasco State Prison: White, Escalante, Mosely, Cloud, Litigation Coordinator, Internal Affairs Director.

Plaintiff appears to allege that defendants Schwarzenegger, Brown and Tilton failed to respond to letters he sent them regarding an unconstitutional CDCR policy concerning the processing of inmate confidential legal mail. Plaintiff alleges that CDCR has an inconsistent policy regarding disturbing or offensive correspondences as a result of which prison officials improperly disallow confidential mail. Plaintiff may also be claiming that defendant Brown authored the unconstitutional policy

Plaintiff does not describe the at-issue policy or how it is inconsistently applied. Plaintiff does not describe any confidential mail that he was not allowed to receive because is was improperly deemed deemed offensive or disturbing. Because plaintiff's description of the at-issue policy and its application are vague and conclusory, this claim is dismissed with leave to amend.

Plaintiff's claim against defendants Scharzenegger and Tilton are so vague and conclusory that the court cannot determine whether he has stated a colorable claim for relief. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (vague and conclusory allegations of official participation in civil rights violations are not sufficient). It is not likely that the court would find either defendant Schwarzenegger or Tilton liable for the alleged deprivations simply based on plaintiff's allegation that he sent them a letter.

The rest of plaintiff's claims concerning the improper handling of his mail and inmate grievances at Wasco State Prison. Plaintiff alleges that on July 15, 2008, Wasco officials returned plaintiff's claim form to the court as "undeliverable." Plaintiff also alleges that the appeals coordinator at Wasco held onto one of his grievances for over one year.

Fed. R. Civ. P. 18(a) provides: "A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime as the party has against an opposing party." "Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2." George v. Smith, ...


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