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Sims v. Wohlers

February 9, 2010

DARIUS SIMS, PLAINTIFF,
v.
ANNE WOHLERS, 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, 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, housed at Salinas Valley State Prison, names various Mule Creek State Prison employees as defendants: Anne Wohlers, teacher; Associate Wardens Silvia Garcia and M. Bunnell; Captain W. Knipp; Lieutenant E. Palubicki; Psych Tech. S. Andrews; Administrative Segregation (Ad Seg) Property Officer Montanez. Complaint, pp. 1-2. Plaintiff states that "[a]ll defendants contributed to confiscation of petitioner's [sic] legal material." Id., at

3. "Defendant Wohlers threatened to take petitioner's personal property." Id. Plaintiff alleges that after he "wrote a 602 on A. Wohlers for changing [his] T.A.B.E. test answers," defendants Wohlers and Andrews "wrote a false statement," to have plaintiff placed in Ad Seg. Id.

As to defendants Knipp and Palubicki, plaintiff claims that they were aware of the situation between himself and defendant Wohlers and that plaintiff told them that he did not have access to his legal file to be able to correspond with the (unnamed) court. Id. Defendants Garcia and Bunnell spoke to plaintiff in the hospital and told him that he "was not at fault and could go to any other prison." Id. Defendant Garcia also told plaintiff that "this is what happens to inmates who write up staff members, property is taken and transfer[r]ed to another prison." Id.

It is unclear what plaintiff is referring to when he says this defendant told him "this is what happens"; that is, it is not clear if he means that his being in the hospital has something to do with his complaint or if he is simply claiming not to have access to his property. Plaintiff wrote a 602 grievance regarding defendant Montanez for refusing to send out his legal mail to Kings County Superior Court because the letter was regarding to prison staff. Id.

Plaintiff claims that "all defendants had a problem" with the 602 appeals plaintiff filed for staff misconduct and all of his "legal material, envelopes, stamps, pens, Bible, phone book, ect [sic] was [sic] confiscated by Mule Creek Prison Staff." Id. Plaintiff attaches a number of exhibits, including copies of inmate grievances, but no where sets forth the relief he seeks.

Fed. R. Civ. P 8 sets forth general rules of pleading in the federal courts. Complaints are required to set a forth (1) the grounds upon which the court's jurisdiction rests, (2) a short and plain statement of the claim showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Plaintiff's failure ...


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