The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
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 consented to the jurisdiction of the undersigned. See docket # 5, filed on March 10, 2010.
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 $14.66 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).
The complaint states a colorable claim for relief against defendants Kathleen Dickinson, warden of California Medical Facility-Vacaville (CMF); Sgt. R. Thomas; Captain D. Hurtado; J.P. Gonzalez; Chief Deputy Warden G. Swarthout; Lieutenant R. Douglas; Correctional Counselor (CC) II Hudnall; CC II W.J. Sinkovich; CC I Garry; Vocational Instructor J. Clark; Chief of Inmate Appeals N. Grannis, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b).
Plaintiff has submitted a complaint of 100 pages with a separate addendum of another 30 pages, for a total of 130 pages, most of which are exhibits. The addendum, although filed on the same day, constitutes a supplement, and is violative of Local Rule 220, in that it is not complete within itself without reference to the prior pleading. The addendum therefore will be stricken.
The gravamen of plaintiff's complaint is that he was deprived of due process and subjected to cruel and unusual punishment by having been placed in administrative segregation for nine months although the original serious rules violation for which he was found guilty was dismissed because due process was violated when he was denied witnesses; a new hearing was ordered but it is not clear whether a new hearing was ever held. Complaint, pp. 5, 8, 41-42, 65-66.*fn1
Plaintiff also claims that on February 20, 2010, a C/O Echeverria (not named as a defendant) got mad at two officers who had hand-cuffed plaintiff in front (for documented medical reasons), saying that he then went to physical therapy for arthritis in his shoulders. Complaint, p. 6. It is unclear whether plaintiff is saying that it is his arthritis that necessitates the cuffing in front or that he was cuffed in back after Echeverria's interference, resulting in his arthritis condition becoming exacerbated.
The next day, on Feb. 21, 2010, after Echeverria spoke to defendant DeMars, the two placed a big sign outside plaintiff's cell, stating "Do not cuff this inmate in front," per Sgt. DeMars. Complaint, p. 6. Plaintiff claims that other officers do not understand why this was done as they say plaintiff does not cause problems. Id., at 7.
When plaintiff was placed in Administrative Segregation (Ad Seg), as ordered by defendant Thomas, after issuance of an RVR-115 on May 22, 2009 by defendant Clark, Thomas failed to ensure that the outlet in his assigned cell was working as required for his continuous positive air pressure (C-PAP) device. Complaint, p. 8. Nor did defendant Thomas make sure that the sterilized water that plaintiff needed for the device was placed among his property upon his being removed from ...