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).
PLAINTIFF'S APPLICATION 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). An initial partial filing fee of $25.35 will be assessed by this order. See 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 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).
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).
In his complaint, plaintiff alleges the following. On August 7, 2008, a prison official wrote a rules violation report charging plaintiff with the possession of contraband glasses. Plaintiff's disciplinary hearing regarding the rules violation was subsequently held on September 12, 2008 before defendant Blackwell. During the disciplinary hearing, plaintiff and defendant Blackwell exchanged heated words. Plaintiff was upset that defendant Blackwell had not allowed him to call witnesses or examine the contraband glasses at the disciplinary hearing. At the conclusion of the hearing, defendant Blackwell found plaintiff guilty of the rules violation. (Compl. at 3-5.)
Thereafter, defendant Blackwell ordered plaintiff to sign a inmate trust account form in the amount of $52.00 to cover the cost of the contraband prescription glasses. Plaintiff, however, refused to sign the form. According to plaintiff, this greatly agitated defendant Blackwell. (Compl. at 5-6.)
On November 3, 2008, defendants Payne, Fonte, and Peel conducted a search of plaintiff's cell and found a brown tar-like substance under the mattress of the upper bunk. Both plaintiff and his cellmate were taken to the program office and questioned about the substance. There, plaintiff's cellmate admitted that he was the one assigned to the upper bunk and that the tar-like substance belonged to him. Despite his cellmate's confession, plaintiff was placed in administrative segregation and was required to remain there until tests regarding the substance had been completed. (Compl. at 7-9.)
On January 20, 2009, plaintiff's disciplinary hearing was held with respect to the events of November 3, 2008. At that hearing, plaintiff was found not to be guilty of any rules violation. On January 30, 2009, plaintiff was released from administrative segregation. Thereafter, plaintiff filed several appeals regarding his placement and retention in administrative segregation. (See Compl. at 10-19.)
Based on these allegations, plaintiff appears to claim that defendants Blackwell, Payne, Fonte, Peel, Clay, Haviland, and Singh conspired to retaliate against him in violation of his First Amendment rights. In terms of relief, plaintiff seeks injunctive ...