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Wesley v. Walker

April 30, 2010

ANDREW WESLEY, PLAINTIFF,
v.
J. WALKER, WARDEN, 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 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). An initial partial filing fee of $1.05 will be assessed by this order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be 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).

As individual defendants, plaintiff names the following: Dr. Raming; Dr. Babrah; Warden J. Walker; Sergeant (Sgt.) Blackburn; Correctional Officer (C/O) Larusso. To the extent that plaintiff seeks to name "New Folsom Officers" or "Medical Staff for Mental Illness" generically as defendants, these so-called defendants must be dismissed because no individual is identified upon which a complaint could be served.

Plaintiff alleges that he has been housed in California State Prison-New Folsom since December 2004, and since the beginning of 2005, he has been subjected to various deprivations of his constitutional rights, including physical and mental abuse, having been denied food and "yanked in triangle cuffs," as well as given an "unknown medical shot" and placed illegally in the SHU [security housing unit]. Complaint, p. 3.

Plaintiff claims that defendant Walker has had plaintiff placed in SHU illegally before plaintiff was given a CDC 115 hearing or found guilty, but plaintiff does not state when this occurred or for how long. Complaint, p. 4. Plaintiff also claims that, apparently while he was in SHU, he was subjected to excessive force by six officers whose names he does not know, stating that these unidentified individuals put him in a triangle chain, yanking his hands until they bled. Id. He does not provide any information as to when this incident occurred or the circumstances surrounding it. Plaintiff then alleges that he was denied food by defendant Larusso as well as other unnamed staff (id.), again without saying when or for how long a period of time this occurred.

Plaintiff alleges that when he was in his cell in May-June of 2009, defendants Raming, Barbrah and Blackburn "conspired to send" him "to a suicidal ward," tricking him out of his cell, even though plaintiff claims he never said anything about harming himself. Complaint, p. 4. Defendant Blackburn allegedly told plaintiff he was to be x-rayed for T.B. but instead plaintiff was put in a "suicide [] hospital." Id. Apparently, at some point defendant Larusso and two unidentified staff members cuffed plaintiff while plaintiff was in a medical unit for mental illness, giving him "a shot of unknown substance," without plaintiff's permission "or a Keyhea order." Id.

Plaintiff claims to have been denied food for a couple of days while in the suicide ward, but he does not say by whom (complaint, pp. 4-5)(it is unclear whether this is the conduct he mentioned earlier which he ascribed to defendant Larusso and unnamed others, or a separate incident). Plaintiff also alleges without providing any information as to when this occurred or on what occasion(s) it may have occurred, that unnamed staff have, for no apparent reason, sprayed him illegally. Id., at 5.

Plaintiff apparently seeks money damages ("just payments for the evil this prison staff [has] done") and relief in the form of ...


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