The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, who proceeds without counsel filed this action on October 6, 2009, while detained at the Sacramento County Jail. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The former magistrate judge denied plaintiff's request for appointment of counsel on November 3, 2009 (Dkt. No. 8), but did not address plaintiff's motion for leave to proceed in forma pauperis, or screen the complaint pursuant to 28 U.S.C. § 1915A. This case was reassigned to the undersigned on February 9, 2010.*fn1
Plaintiff has submitted a declaration together with a copy of his jail trust account statement that make 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.
A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).
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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Id.(citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id.at 1950.
Plaintiff alleges that on August 25, 2009, he was injured by Officer Martin. Plaintiff alleges that during the "graveyard pill call shift," at approximately 3:00 to 3:30 a.m., Martin escorted a new medication technician through plaintiff's wing who announced "Medication." Plaintiff states that in response he got down from his top bunk, carefully because his feet were injured, and replied "Medication" as he lost his balance, grabbing the tray slot with his left hand to regain his balance. Plaintiff alleges that "[t]hen without warning Officer Martin started forcefully striking the top of my left hand many times that cut open and started bleeding and was forcefully striking my left forearm as well with his extra large bundle of cooper (sic) keys as well as slamming the tray slot shut on my arm before I could pull my arm and hand back through it, without 'ever' giving me any 'warning' to pull my arm back through the slot." (Complaint ("Cmplt.") at 3-4.) Plaintiff alleges that Martin thereafter ordered that plaintiff not receive his medication. (Id. at 5.) Plaintiff states that nine inmates signed an affidavit stating they had witnessed this event. (Id. at 4-5.) The next night Martin allegedly came to plaintiff's cell, ...