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Turner v. Prieto

July 9, 2010

ANTHONY RICHARDO TURNER, PLAINTIFF,
v.
ED G. PRIETO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

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). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 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 prison trust account and forward it to the Clerk of the Court. Thereafter, 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 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 when 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)). 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." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Named as defendants in plaintiff's complaint are the following employees of the Yolo County Sheriff's Department: Prieto, Myers, Jackson, Schneider, Bradbury, Lucero, Zetwick, Rayls (badge no. 372), Hale, Hunter, Praest, Rayls (badge no. 480), Masdeo, Purcell, Leal, Hoyt, Howard, Rademaker and Folstham.

Plaintiff alleges that defendant Zetwick filed a rules violation report against plaintiff then proceeded to violate plaintiff's due process rights during the disciplinary proceedings. Plaintiff alleges that he did not receive notice of the charges, an opportunity to be heard, and staff assistance because he is a mental health patient.

The court presumes that plaintiff was a pretrial detainee while housed at the Yolo County Jail. The imposition of disciplinary segregation or other sanctions as punishment for a pretrial detainee's violation of jail rules and regulations cannot be imposed without the procedural due process requirements established by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539 (1974). See Mitchell v. Dupnik, 75 F.3d 517, 523-26 (9th Cir. 1996). Those procedural protections required by Wolff include advance written notice of the charges, no less than twenty-four hours to prepare for the disciplinary hearing, a written statement by the fact-finders of the evidence relied on and the reasons for the disciplinary action taken, a limited right to call witnesses and present documentary evidence at the hearing, and a limited right to receive assistance from a fellow inmate or correctional staff. See Wolff, 418 U.S. at 564-70.

Plaintiff's claim that defendant Zetwick failed to give him notice of the charges is somewhat vague and conclusory. In the first place, plaintiff does not describe the charges made against him by defendant Zetwick. In addition, it is unclear if plaintiff is alleging that when he arrived at the disciplinary hearing he had received no written notice of the charges from anyone or whether he received written notice but not from defendant Zetwick. It is also unclear what plaintiff means when he alleges that he did not receive an opportunity to be heard. Accordingly, these claims are dismissed with leave to amend.

Due process requires inmates be provided with the assistance of a staff representative if the inmate is illiterate or "the complexity of the issues makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case." See Wolff, 418 U.S. at 570. Plaintiff is clearly not illiterate. Plaintiff does not discuss why his status as a mental health patient ...


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