The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner at California State Prison-Sacramento ("CSP-SAC") proceeding without counsel who seeks relief pursuant to 42 U.S.C. § 1983. Framed as a class action, plaintiff pursues this action on his own behalf and on behalf of other inmates who participated in the principal underlying administrative appeal. In addition, plaintiff requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and moves for a preliminary injunction. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
IN FORMA PAUPERIS APPLICATION
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).
The complaint herein is framed as a class action, and the principal underlying administrative appeal, Log No. SAC-B-10-00206 (hereafter "Group Appeal"), was filed and exhausted as a group appeal challenging the inclusion of "Non-Affiliated Black" inmates in a "Modified Program" (lockdown) instituted at CSP-SAC on January 19, 2010. The complaint tracks the allegations of that administrative appeal. The complaint names four defendants: C. Cannedy, B-yard Lieutenant; J. Hansen, B-yard Sergeant; J.W. Baker, B-yard Sergeant; and Tim Virga, CSP-SAC Warden.*fn1
Because plaintiff also seeks preliminary injunctive relief, the court reviews the underlying factual allegations in detail. As alleged in the complaint, the relevant facts commenced January 19, 2010, with a riot between "Black disruptive groups" and "Southern Hispanics" in the "B Facility" school and library at CSP-SAC, resulting in serious injuries to two inmates. In response, CSP-SAC staff immediately placed "all General Population inmates identified as Blacks and Southern Hispanics, and their cell mates, on a Modified Program" which widely suspended prison activities for these inmates, and imposed the use of restraints and escorts for their movements. (See Dkt. No. 1 (Complaint) (hereafter "Cmplt."), at p. 29*fn2 (B Facility Program Status Memo, dated January 19, 2010)). On January 21, 2010, the Modified Program was broadened to apply to "all General Population inmates identified as Blacks, Southern Hispanics, Mexican Nationals (Paisa), and their cell mates" pending further assessment. (Id. at 30 (B Facility Program Status Memo, dated January 21, 2010)).
On January 30, 2010, plaintiff and others filed the underlying Group Appeal. (Cmplt. at 7, 24-43.) Defendant Hansen interviewed plaintiff pursuant to the First Level Review, and "partially granted" the appeal based on the inquiry he conducted. The First Level Review decision states in pertinent part (id. at 34-35):
You have not supplied enough reliable data to verify the existence, membership, and non-involvement of any Black sub-groups included in your proposed groups labeled as "Black Non-affiliate" or as "Black Muslim." Also, you have not fully demonstrated that the Black population which remained in B-Facility General Population after the apparently involved inmates were sent to Administrative Segregation had not been involved in the incident, are not currently involved in subverting the safety and security of the institution, and will not in the future be involved as either suspect, victim or in any other manner, in violence or any other type of ramification possibly related to the January 19, 2010 racial riot.
The complaint alleges that Hansen, pursuant to this First Level Review, "misquoted facts of the interview" and "could not present a logical explanation as to why Black Non-Affiliates were still on lock-down. At one point he 'pretended' to be unaware of how to distinguish between 'Black disruptive groups' and 'Black Non-Affiliates inmates'-as if there was no classification system. [¶ ] Sgt. Hansen did agree that 60 days was 'long enough' for staff to figure out who the non-affiliates were." (Id. at 7, 8.)
On March 25, 2010, defendant Virga (CSP-SAC Warden) issued the Second Level Review, "partially granting" the Group Appeal based on Virga's investigation of the matter. Virga concluded in pertinent part (Cmplt. at 39):
Your request that SAC B Yard staff cease the racial discrimination of locking down all of the African American inmates who are not classified as disruptive and not involved in the January 19, 2010 incident is denied based on your claim of racial discrimination is unfounded at the SLR (Senior Level Review). Your request to immediately restore all privileges to non-affiliated Black/Muslim inmates is partially granted based on canteen, quarterly packages, and education privileges have been restored (sic).*fn3 You are reminded that Modified Program/Facility lockdown is used as a temporary precautionary measure to mitigate the potential for future violence. Additionally, the Modified Program ...