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Terry v. Cate

September 1, 2010

NICK TERRY, PLAINTIFF,
v.
MATTHEW CATE, 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). Plaintiff has consented to the jurisdiction of the undersigned. Docket # 9, filed on August 12, 2010.

By order filed on August 3, 2010, plaintiff was directed to file an in forma pauperis affidavit or pay the required $350.00 filing fee within thirty days, citing 28 U.S.C. §§ 1914(a), 1915(a). Court records indicate that plaintiff paid the filing fee in full on August 10, 2010.

Although plaintiff has paid the filing fee in full, the court will afford plaintiff an opportunity to file an in forma pauperis affidavit showing that he may be entitled to in forma pauperis status. Should plaintiff be found to qualify to proceed in forma pauperis, he would not be assessed any further filing fee as that has been paid in full, but the court would be able to direct the U.S. Marshal to serve the amended complaint (see below), rather than requiring plaintiff to do so, should plaintiff file an amended complaint setting forth colorable allegations.

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).

Plaintiff names in the caption of his complaint the following as defendants: Matthew Cate, Director [Secretary] of the California Department of Corrections and Rehabilitation (CDCR); High Desert State Prison (HDSP) Warden McDonald, HDSP Correctional Sergeant Kelly (retired); and HDSP Correctional Officer (C/O) Sharp. Complaint, p. 1. However, that is the first and last reference made within his complaint to these individuals. Plaintiff strings together a litany of allegations, claiming that CDCR is housing plaintiff and other disabled inmates in unsafe living conditions by placing them in yards with the most violent inmates. Id., at 1. He also alleges, in a sweeping and very generalized manner, that CDCR is discriminating against disabled inmates, including himself, by denying them the same services, activities, job, yard and dayroom time they had before becoming disabled. Id.

Plaintiff alleges that unnamed C/O's harass and discriminate against him by refusing to allow him meals when he has to have medical treatments, refusing to issue him a cup or spoon. Complaint, p. 2. Plaintiff complains that unnamed officers have told him, because he wears a yellow vest, indicating he is disabled, that they have to get him out of their building. Id. He claims that he was refused toilet paper and soap for several hours upon his arrival after a long bus ride and further twelve-hour wait in R&R. Id. He also alleges that he was refused laundry bags while housed in Building 6 and refused blankets for fourteen days, when some nights were very cold. Id. He claims that his property is lost or damaged whenever he goes to the hospital, that his quarterly packages are delayed and sent back, that art supplies he donated to a recreation therapy program at the prison hospital have been withheld from the program, that he and other disabled inmates are harassed with "ignorant comments" by unnamed C/O's when they go for medical treatments. Id.

Plaintiff claims that he has been refused law library access for several months, that whites and Mexicans have been on lockdown since July 2009, and he has not had visits, access to canteen, or any yard time for a year. Complaint, p. 3. He complains further that he is harassed by CDCR in the form of his legal notes having been confiscated, by their losing his prescription glasses and family photographs, by their delaying his mail. Id. Plaintiff seeks money damages and injunctive relief. Id., at 3-4.

At the most basic level, plaintiff has filed a complaint that does not conform with the requirements of Fed. R. Civ. P. 8(a)(2), inasmuch as plaintiff fails to provide, "a short and plain statement of the claim showing that the pleader is entitled to relief...." Nor does he provide "sufficient allegations to put defendants fairly on notice of the claims against them," as required by Rule 8. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991)). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (amended complaint with vague and scanty allegations fails to satisfy the notice requirement of Rule 8.) In asserting multiple unrelated claims against defendants whom he has not even clearly identified, plaintiff presents the kind of "mishmash of a complaint" that has been roundly repudiated. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) ("[u]nrelated claims against different defendants belong in different suits").

Plaintiff fails to link any named individual defendant to any of the allegations he makes. 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 ...


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