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Dailey v. Martel

August 4, 2010

JAMES EDWARD DAILEY, PLAINTIFF,
v.
MICHAEL MARTEL, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).

I. Request to Proceed In Forma Pauperis

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 has been without funds for six months and is currently without funds. 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 will 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).

II. Screening Requirement

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. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

III. Plaintiff's Complaint

Plaintiff makes the following allegations: Prisoners at Mule Creek State Prison formed the "Inmate Leisure Time Activity Group," also know as the "Veteran's Support Group," and were allowed by prison staff to "activate" a trust account. (Compl. at 3.) The group raised funds from the inmate population and the funds were used "to purchase necessary materials for the group and to distribute any excess funds to charitable organizations as the membership desired." (Id.) In 2007, prison officials "deactivated" the group's trust account and "implemented a Care Program which took exclusive control over all funds contained in this account and over any future funds raised through Veteran's Support Group activities." (Id. at 3-4.) Plaintiff contends that the Group is unable to use the funds "to meet the groups [sic] needs." (Id. at 4.) In June of 2007, plaintiff submitted a memorandum on behalf of the group and requested that the trust account be re-activated. Prison officials delayed in responding to plaintiff's request in this regard and his inmate appeals were improperly screened out. In terms of relief, plaintiff seeks a court order to have the Veteran's Support Group's trust account restored.

IV. Analysis

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 injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Here, plaintiff has not alleged any Constitutional or statutory basis for his claim.

The court finds that the allegations in plaintiff's complaint are so vague and conclusory that the court is unable to determine whether the current action is frivolous or fails to state a claim for relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support his claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

If plaintiff is alleging a violation of his First Amendment right to associate, he must allege specific facts concerning the purpose and activities of the Veteran's Support Group. Helpful background information would include when the group was formed, membership requirements, the number of prisoners who are members, and plaintiff's personal involvement with the group. Plaintiff is informed that although prisoners have a First Amendment right to associate, the right may be restricted in ways that are consistent with his status as a prisoner or if there are legitimate penological objectives. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 239 (1977); see also Poore v. Alameida, No. C03-04115 MJJ, 2006 WL 2458719, at *7 (N.D. Cal. Aug. 22, 2006) ("The Jones court found that the prison officials had legitimate policies and goals warranting the restriction...[] particularly important was the motive to eliminate friction between inmate and prison ...


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