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 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 names the following as defendants at High Desert State Prison (HDSP): Chief Deputy Warden R. L. Gower; Associate Warden M. Wright; Correctional Counselor (CC) II Sandoval; CCI Townsend. Complaint, pp. 1-2. The gravamen of plaintiff's allegations is that plaintiff's Eighth Amendment rights are being violated because the defendants have failed to protect him by falsely documenting that he is a child molester, when he has never been convicted of such a charge. Id., at 5. Plaintiff further claims that defendants' alleged falsification of records and documents have violated his due process rights. Id.
Plaintiff alleges that his "only offense is a 1982 sodomy" conviction, an offense which was committed in a county jail, and for which he must register under Cal. Penal Code § 290. Complaint, p. 7. Plaintiff includes as Exhibit A an unauthenticated copy of a 2009 classification chrono, which, under plaintiff's "sex offenses," in addition to a 1983 "sodomy in concert with force," lists "L&L [for lewd and lascivious] Acts W/Child; Age Specific x 2 and Oral Copulation W/Person Under 18." Complaint, p. 19. Further review of plaintiff's unauthenticated exhibits shows that plaintiff has filed administrative grievances regarding what he contends is a false accusation which places him in danger. At Exhibit B in an informal level response evidently signed by defendant Townsend, plaintiff was informed that his records indicate that in 2006 he was in court for two counts of L&L Acts with a child and one count of oral copulation with a person under 18. Id. at 21. Defendant Townsend also acknowledges that these charges were dismissed but contends that it is CDCR's responsibility to record any sex offense for which plaintiff was arrested or detained. Id.
At Exhibit C, a copy of a June 19, 2009, first level appeal response, evidently signed by defendant Wright and referencing an interview plaintiff had with defendant Sandoval, defendant Wright makes essentially the same point as stated above, specifically stating that the November 22, 2009, California Identification and Information (CC&I) System Report in plaintiff's central file reflects the 1983 sodomy conviction as well as plaintiff's later arrest for the sex offenses for which plaintiff was not convicted, stating in part: "The report further reflects that the charges were subsequently dismissed; however, they are a permanent record and will not be omitted from your records." Complaint, p. 27.
The second level appeal response at Exhibit D, dated July 20, 2009, apparently signed by defendant Gower, is more detailed and references CC&I information in plaintiff's central file dated June 23, 2009 (not the date cited in the first level response). Complaint, pp. 29-31. Defendant Gower references, in addition to the sodomy conviction, plaintiff's 2006 possession of a firearm offense for which plaintiff received a sentence of 25 years to life.*fn1 Id., at 30.
A review of your central file, specifically the California Identification and Information (CI&I) dated 6/23/09 reflects you appeared before San Mateo Superior Court on 4/14/1983. On 4/22/1983 you were received by California Department of Corrections and Rehabilitation (CDCR) for the conviction of PC 286(D) Sodomy in concert with force, two counts, and PC 288A(b) Oral copulation with the use of a weapon. You paroled from CDCR on 3/26/1989 and you registered as PC 290 registant on 03/29/1989. Your CI&I also reflects on 02/05/06 you were arrested by Sacramento County Sheriff's Office and you appeared before Sacramento County Superior Court on 10/20/06 receiving twenty five years to life for Possession of a Firearm. Additionally, your CI&I reflects on 11/03/06 you appeared before Sacramento County Superior Court...for two counts PC 288(C)(1) Lewd and Lascivious acts with a child (age specific) and PC 288A(B)(1) Oral Copulation with a person under 18 years old.
Upon further review of your central file, the Sacramento County Probation Officer Report dated 10/20/06...reflects a subsequent arrest by Sacramento Police Department ... on 3/21/2006 for PC 288a(B)(1) Oral Copulation with a person under age 16, and PC 288(C)(1) Lewd Act with a Child of 14 or 15 years. The details of the incident are described and the ...