The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (DOC. 1)OBJECTIONS DUE WITHIN TWENTY-ONE (21) DAYS
Findings And Recommendations
Plaintiff Ebone Leroy East ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on November 12, 2010. Doc. 1.
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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff was previously incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names as Defendant C. Reed, RDA. Plaintiff also alleges that Defendant's supervisors are also responsible.
Plaintiff alleges the following. On March 16, 2010, Plaintiff was charged five dollars for a follow-up from January 25, 2010. Plaintiff was told by Defendant Reed that every time he filed a 602 healthcare grievance and had a hearing, he would be charged, as it was considered an appointment. Plaintiff alleges a violation of the First, Eighth, and Fourteenth Amendments. Plaintiff incorporates his inmate grievances concerning his claims into his complaint.
Plaintiff requests as relief monetary damages, and that Defendant Reed be fined.
Plaintiff contends that he has a First Amendment right to file free inmate grievances. Compl. 16-17. Prisoners have a constitutional right to file inmate grievances. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005), and Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003)). It is unclear whether prisoners have a constitutional right to free inmate grievances. However, that argument is moot.
An examination of Plaintiff's exhibits which were incorporated into his complaint indicates that Plaintiff was not charged for filing an inmate grievance. Plaintiff had filed a CDC 7362 Health Care Services Request Form, and was charged a five dollar co-pay. Compl. 9, ...