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Daniel Stephen v. California Department of Corrections

January 7, 2011

DANIEL STEPHEN WHALEN, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has consented to the jurisdiction of the magistrate judge for all purposes. (Dkt. No. 10.) See 28 U.S.C. § 636(c) and E.D. Cal. L. R. ("Local Rule") 305(a).

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 is 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).

In his complaint, plaintiff challenges the circumstances of his transfer from Avenal State Prison to the Rio Consumnes Correctional Center in October 2008. Plaintiff alleges that deputies with the Monterey County Sheriff's Department, responsible for transporting plaintiff, improperly relied on physical restraints and excessive force in moving plaintiff, recklessly drove an enclosed (claustrophobic) vehicle, mocked plaintiff, and placed plaintiff for prolonged periods in holding cells without beds or blankets. Plaintiff alleges that he was treated "like an animal," and in Salinas forced to sleep on a cold, dirty floor with no mattress. Plaintiff contends that these circumstances were particularly harmful to him because he "already [has] an acute mental illness," and the restraints caused him to seizure. (Dkt. No. 1, at 5.) The only defendant named relative to these matters is the driver of the vehicle from Avenal to Salinas, Monterey County Sheriff's Deputy Sanchez.

Plaintiff alleges that he was then transported to Sacramento, and from there transported to the Rio Consumnes Correctional Center in a "cattle truck" style vehicle by deputies with the Shasta County Sheriff's Department. Plaintiff alleges that in Shasta County he was subject to prosecution on false charges.

Plaintiff also alleges the theft of his boat and motorhome by the only other named defendants, Shasta County Sheriff's Deputies Nelson and Kropholler.

Plaintiff also contends that he was improperly placed at High Desert State Prison in administrative segregation, where he was "caged like an animal" without access to basic necessities, and that his "inhumane mistreatment has only exacerbated and intensified my mental illness causing me irreparable damage to my mental, physical as well as emotional well being." (Id. at 8.)

Plaintiff is currently incarcerated at California State Prison-Solano.

Plaintiff fails to state potentially cognizable claims based on his allegations of false charges and theft. The proper procedure for pursuing the former was an ...


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