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Edward Antonio Battiste v. B. Velasquez

March 28, 2011

EDWARD ANTONIO BATTISTE, PLAINTIFF,
v.
B. VELASQUEZ, DEFENDANTS.



ORDER

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).

I. In Forma Pauperis Application

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). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). 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 shall 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).

II. Screening Requirement

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).

III. Plaintiff's Complaint (Doc. No. 3)

Although plaintiff's handwritten complaint is difficult to read, it appears that plaintiff is attempting to raise two claims against defendant correctional officer Velasquez. First, plaintiff claims that defendant Velasquez issued a false prison rules violation report charging plaintiff with assault. In this regard, plaintiff alleges that defendant Velasquez lied when he reported that plaintiff "rose up out of my wheelchair jumped in the air counter clockwise" and assaulted defendant. (Doc. No. 1 at 3.) Plaintiff also alleges that as a result of this prison rules violation charge, he lost good time credits and his parole date has been extended. Plaintiff also contends that defendant Velasquez has a history of engaging in staff misconduct. Second, plaintiff claims that defendant Velasquez has caused plaintiff to suffer cruel and unusual punishment. In this regard, plaintiff alleges that because of the rules violation report issued by defendant Velasquez, plaintiff was placed in administrative segregation and the security housing unit for eleven and a half months. Plaintiff claims that the housing conditions he was subjected to in administrative segregation violate the Eighth Amendment because he was on 24-hour lock-down and was shackled whenever he exited his cell.

In terms of relief, plaintiff seeks restoration of his good time credit, monetary damages in the amount of one million dollars, and the termination of defendant Velasquez's employment.

IV. Analysis

Upon review of plaintiff's complaint, the court finds that there are several deficiencies. Therefore, the court will dismiss the complaint and provide plaintiff an opportunity to file an amended ...


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