Plaintiff, a state prisoner proceeding pro se, is seeking relief pursuant to 42 U.S.C. § 1983. Now before the court are plaintiff's objections to the court's February 12, 2010 findings and recommendations recommending dismissal of plaintiff's complaint without prejudice due to failure to exhaust administrative remedies.
On September 24, 2009, plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. After a careful review of plaintiff's complaint, the court issued findings and recommendations on February 12, 2010, recommending that plaintiff's action be dismissed without prejudice due to his apparent failure to exhaust administrative remedies. Therein, the court explained that plaintiff must first seek relief from the California Department of Corrections and Rehabilitation's (CDCR) established grievance process prior to bringing a § 1983 action. The court concluded that plaintiff's allegation that he filed a citizen's complaint and mailed a letter to CDCR Internal Affairs and the Federal Bureau of Investigation's (FBI) Ombudsman was insufficient to satisfy the exhaustion requirement.
On February 26, 2010, plaintiff filed timely objections to the court's findings and recommendations. Therein, plaintiff clarifies that in addition to the citizen's complaint and the letters to Internal Affairs and the FBI, he also filed a CDC-602 grievance form. Plaintiff alleges that the grievance form contested a CDC-115 rules violation, which was authorized by defendant Goldy. Plaintiff suggests that this CDC-115 rules violation forms the basis of his claims against defendant Goldy.
After carefully considering plaintiff's objections, the court will allow plaintiff's civil rights action to proceed. The United States Supreme Court has addressed the exhaustion requirement with regard to a plaintiff proceeding under § 1983 and has held that a plaintiff is not required to specifically demonstrate that he has exhausted administrative remedies in his complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007); see also Nunez v. Duncan, 591 F.3d 1217, 1223-24 (9th Cir. 2010). Rather, lack of exhaustion is an affirmative defense which must be pleaded and proven by the defendants. See Jones, 549 U.S. at 216. Here, it is no longer obvious that plaintiff failed to exhaust administrative remedies prior to filing this action. Accordingly, the court will vacate the findings and recommendations filed February 12, 2010 and will proceed to evaluate plaintiff's in forma pauperis application and screen his complaint.
PLAINTIFF'S IN FORMA PAUPERIS APPLICATION
Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1). Plaintiff's current account balance, as of March 23, 2010, is $0.29. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff will be 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. See 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 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.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim 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, 550 U.S. at 555. 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 (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 (1969).
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party ...