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Parmer v. Walker

May 10, 2010

DAVID EARL PARMER, PLAINTIFF,
v.
J. WALKER, 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. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

This case was transferred from the Southern District of California by a filing dated November 30, 2009. On December 16, 2009, this court ordered plaintiff to file a completed application for leave to proceed in forma pauperis on the form used by this district within thirty days. Plaintiff filed a request for leave to proceed in forma pauperis, but failed to file a certified copy of his prison trust account for the six-month period immediately preceding the filing of the complaint or to obtain the certification required on the form. 28 U.S.C. § 1915(a)(2). Therefore, by an order filed February 16, 2010, plaintiff was directed, within thirty days, to file a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of the complaint and the certification required on the in forma pauperis application form. Plaintiff was cautioned, in both the order filed on December 16, 2009, and the one filed on February 16, 2010, that his failure to comply with the order would result in a recommendation that this action be dismissed without prejudice.

As plaintiff failed to file a timely response to the February 16, 2010, order, the court on, April 5, 2010, recommended dismissal of this case without prejudice. Within the objection period, plaintiff filed a certified copy of his trust account, although he did not submit the certification required on the in forma pauperis application form. Despite his tardiness and lack of full compliance, the court will vacate the findings and recommendations and liberally find that 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).

To the extent plaintiff seeks to name the California Department of Corrections and Rehabilitation (CDCR), plaintiff is informed that 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 CDCR are frivolous and must be dismissed.

As to any claims against "medical" at California State Prison-Sacramento (CSPSac), these claims will be dismissed because plaintiff fails to identify an individual appropriate for service of process.

Plaintiff claims that defendant Warden Walker, on August 18, 2009, told everyone "in the committee," apparently the classification committee, that plaintiff was convicted of rape, and kept plaintiff in "PSU" for another month because he said people like plaintiff make him sick; defendant Walker also said he was out to get plaintiff because of a lawsuit plaintiff had pending against CDCR. Complaint, pp. 2-3. Defendant Daly has "call[ed] [plaintiff] out of [his] race," and has said "he is playing with [plaintiff's] release date," messing with plaintiff's paper work and is telling other inmates that plaintiff has an "R" suffix when he does not. Id. Defendant C. Rasmussen has called plaintiff a "black asshole" and has messed with plaintiff's case records and said that plaintiff raped someone when this is not true. Id. Defendant M. Bobbala (and apparently unnamed others) has not seen him for his medical needs and plaintiff states that he has been in severe pain. Id. Confusingly, he also complains that "they" are in fact trying to give him epidural steroid injections, which he apparently objects to because CSP-Sac does not have the appropriate program. Id., at 9.

Plaintiff claims to be in fear for his life and states that if he did not have a cell he "would be dead." Complaint, p. 5. He complains that as an ADA and DPO inmate he has a wheelchair and walker due to his illness, has difficulty negotiating hills at the prison, and claims that unnamed medical staff are with defendant Walker in not transferring plaintiff to a prison that has a disability placement program. Id., at 4. The court notes, however, that plaintiff has recently filed a notice of his change of address to California Medical Facility.

Retaliation by prison officials for the exercise of a prisoner's constitutional right of access to the courts violates the federal constitution. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994); Woods v. Smith, 60 ...


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