The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. Â§ 1983 and has requested authority pursuant to 28 U.S.C. Â§ 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. Â§ 636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. Â§ 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. Â§Â§ 1914(a), 1915(b)(1). An initial partial filing fee of $18.72 will be assessed by this order. 28 U.S.C. Â§ 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for 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. Â§ 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. Â§ 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. Â§ 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, in a deficiently organized filing of some 134 pages (primarily exhibits), names the following, all employed at Folsom State Prison (FSP), as defendants: Associate Warden T. Virga; Appeals Coordinators A. Pereiara and K.A. Daly; Correctional (Corr.) Lieutenant Conrad; Psychologist Benzendine; Registered Nurse (RN) Chappell; Corr. Officer (C/O) Brown; Corr. Counselor Guzman; Corr. Sergeant Wolff. Complaint, pp. 2-3, 5-6.*fn1 Plaintiff purports to sue for violations of his rights under the First, Eighth and Fourteenth Amendments. Id., at 4.
Plaintiff begins by alleging that he was before the unit classification committee (UCC) on June 9, 2010, July 13, 2010 "and different dates." Complaint, p. 9. Plaintiff identifies by name only defendant Virga as a member of the UCC before which plaintiff presented. Id. He claims that all members present were listening when he stated that he was "very paranoid" about taking a cellmate due to his "extreme paranoia" that he, plaintiff, would seriously or fatally harm a cellmate, further informing them that at California State Prison at Lancaster (CSP-LAC) plaintiff was on single cell status in the S.O.P. mental health program, adding "he was double cell approved against my will." Id. He stated that he went to Administrative Segregation (Ad Seg) at CSP-LAC due to "the poor decision" by certain CSP-LAC officials (individuals \\\\\ apparently not relevant to this action).*fn2 Id. Plaintiff alleges that FSP administration officials were aware of his requests and fears about harming a cellmate by way of unanswered 602 appeals. Id. Plaintiff claims that defendant Virga "totally ignored my verbal warning" at the June 9th, 2010 UCC meeting stating: "'Well, Mr. Taylor, that's your decision. That's your choice, and you will be the one who answers to that. In order to go to S.N.Y.*fn3 , you have to take a cellmate.'" Id.
Once classified as SNY/protective custody status by the UCC, plaintiff apparently repeated that he was paranoid about seriously hurting or killing a cellmate at another UCC appearance, but he nevertheless took a cellmate under duress because he was told he would remain in Ad Seg if he did not. Complaint, p. 10. Plaintiff goes on to state that a lieutenant at CSP-LAC had placed him on single cell status when he had given his "verbal warning" of his fears concerning a cellmate and extrapolates from that that other CSP-LAC officials and defendant Virga and the unnamed UCC members at FSP were deliberately indifferent to both his safety and that of his cellmate by placing him with a cellmate. Id. Plaintiff alleges that the defendants ignored his verbal warnings completely and that defendants Pereiara and Daly obstructed and impeded his right of access to the courts by "spitefully" returning plaintiff's appeals with appeal screening forms. Id. Plaintiff claims that when he would comply with whatever request was made on the form, the appeals were either not answered or returned again with another screening form. Id. Plaintiff also contends that the appeals coordinators also violated "time restraints" on the appeals constantly. Id. at 11.
Plaintiff alleges that on August 1, 2010, he was involved in a serious cellfight with his cellmate, Inmate Miller, CDC # K-61169. Complaint, p. 11. Plaintiff received cuts around his eyes and his left jaw "looked to be broken"; the doctor who saw him recommended an x-ray of his face. Id. Plaintiff states that defendants Conrad and Benzedine interfered with his medical treatment but does not clarify how. Id. Plaintiff expresses his indignation about being sent to a suicide holding cell while his cellmate, who only had a cut to his finger, was allowed to return to "his normal general population housing." Id. Plaintiff claims that was both a failure to protect and an "extreme form" of retaliation for his litigation. Id. Plaintiff was told there was no room in Ad Seg and "'you made mention of homicide on your celly, so that's the reason.'" Id. Plaintiff alleges that defendant Conrad allowed him to be assaulted and then sent him to Ad Seg. Id. Plaintiff states that once he realized he was going to go to Ad Seg (which confusingly he implicitly appears to have earlier preferred to a suicide holding cell and which he later equates to being the same place), "he began to express the altercation as a minor disagreement" and asked that he and Inmate Miller be returned to the yard, after which defendant Conrad and his unnamed subordinates permitted them to sign a yard agreement chrono.
Plaintiff includes a bit of dialogue that appears to be almost surreal. He complains that after both he and Inmate Miller signed the chrono, he was not switched right away, but was told by defendants Conrad and Benzendine that he would have to go to Ad Seg for a few days until someone left. Complaint, p. 12. Plaintiff asked: "'Why am I going to a suicide cell. I never said anything about being suicidal." Defendant Benzendine replied: "'Well, you did state something about homicide on your cellmate.'" Id. "I then corrected her," plaintiff states, "'I told you that I did good by not killing him, besides any other time I really have threatened a cellmate, no one ever cares, and even mocks me about it.'" Id. If plaintiff's point is that somehow saying he did well by not killing his cellmate does not equate to threatening homicide, he fails to make it. Nor does his claim that his prior threats did not result in his being placed in Ad Seg earlier lend significant weight to his allegations. Plaintiff also states that his being placed in a suicide holding cell overnight on a Sunday, when he earlier stated that no x-ray was possible on a Sunday, also does not lend support to his claim that defendants Conrad and Benzedine were trying to discourage him from receiving x-rays the following day. Id. at 11, 13. Plaintiff elsewhere indicates that he did receive x-rays on his face on August 2, 2010, which evidently was the day following the cellfight. Id. at 22.
Plaintiff also claims that defendant Chappell refused his pleas for an ice pack for his swelling face as he sat naked in a nylon suicide vest and walked away (along with unnamed officers denying his requests for medical help that night). Complaint, p. 13. Defendant Wolff joked about his face by saying "Damn who kicked his fuxxing [sic] ass?" Id. When plaintiff responded with "Don't ask any stupid questions," defendant Wolff grabbed plaintiff by the throat, pulling him out of the restroom area, pushing him back to the suicide cell. Plaintiff contends that the conduct of ...