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Akhtar v. Mesa

February 22, 2010

JAVIAD AKHTAR, PLAINTIFF,
v.
J. MESA, 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).

Plaintiff's putative Eighth Amendment allegations against defendant Mule Creek State Prison must be dismissed. The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978)( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of California has not consented to suit. Accordingly, plaintiff's claims against Mule Creek State Prison are frivolous and must be dismissed.

Plaintiff seeks to implicate various individual defendants, Correctional Officer (C/O) J. Mesa, Correctional Sergeant S. Tumar, Lieutenant L. Ward, for his having been moved from his cell to an emergency bunk/bed (E-bunk) despite medical problems, including needing a walker, a double mattress, and medical shoes; having kidney disease; having suffered a stroke on his left side; having brain damage; being subject to seizures; wearing a "hearing impaired" vest and having a triple bunk exclusion. Complaint, p. 2. Plaintiff also contends that an inmate serving a life term should not be placed in a dormitory setting until he is given a release date which he has not. Id.

Plaintiff asserts that defendant Mesa ordered him to move to an E-bunk, but plaintiff refused stating that he would rather go to administrative segregation (Ad Seg) due to his medical and safety concerns. Complaint, p. 2. Defendant Mesa informed defendant Tumar of the situation, after which plaintiff told her that he had a chrono showing that he was to be housed in a "ground floor cell." Id. Thereafter, plaintiff was placed in restraints, moved to Ad Seg, and issued a CDC-115 rules violation report (RVR) for refusing a direct order. Id., at 2-3. Defendant Ward authorized plaintiff's move but failed to check his records to determine plaintiff's medical restrictions; if Lt. Ward had done so, plaintiff would not have been told by defendant Mesa to move to an E-bunk and would not have been placed in Ad Seg. Id., at 3.

Plaintiff informed the Ad Seg sergeant and lieutenant, whom plaintiff does not name as defendants, that he had a triple bunk exclusion, but they both said they "don't care." Complaint, p. 3. Plaintiff claims that he was deprived of his due process rights when he stated that he needed an interpreter but he was not given one for the RVR hearing. Id. When "the 'committee'" informed plaintiff he would be placed on a triple bunk E-bed, he refused and was given another CDC-115 for "obstructing a peace officer in the performance of his duty." Id. Plaintiff states that he was then moved to a triple bunk E-bed nevertheless where he broke his wrist. Id. Plaintiff does not identify by name any of the defendants he seeks to implicate for this move. Id.

Plaintiff complains that he is now housed on a double bunk E-bed on B-facility, where other inmates have hidden his walker and has had his shoes, typewriter and boombox stolen from his bed area. Complaint, p. 3. Plaintiff claims that had he not been moved from his cell and had his medical chronos been followed, he would not have received two CDC-115s, would not have lost "good time" credits, and would not have had his new shoes, his typewriter and his boombox stolen. Id., at 3-4. Plaintiff contends that a U.C. Davis doctor informed him that he should be cell-housed because, due to his kidney disease, he needs a toilet to be readily available. Also, a counselor showed him an Mule Creek State Prison memorandum stating that lifers should be housed in cells. Id., at 4.

Plaintiff seeks money damages only for what he perceives to be deliberate indifference to his serious medical needs in violation of the Eighth Amendment. However, plaintiff's complaint fails to frame such claims. In the first place, to the extent that plaintiff may be challenging any purported due process violation at his RVR hearing and seeking money damages, his claims appear to be barred. In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), an Indiana state prisoner brought a civil rights action under § 1983 for damages. Claiming that state and county officials violated his constitutional rights, he sought damages for improprieties in the investigation leading to his arrest, for the destruction of evidence, and for conduct during his trial ("illegal and unlawful voice identification procedure"). Convicted on voluntary manslaughter charges, and serving a fifteen year term, plaintiff did not seek injunctive relief or release from custody. The United States Supreme Court affirmed the Court of Appeal's dismissal of the complaint and held that: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, ...


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