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John Barros v. M. Minnick

September 13, 2011

JOHN BARROS, PLAINTIFF,
v.
M. MINNICK, ET AL.,
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. Request 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). 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 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).

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

In his complaint plaintiff alleges as follows. He has suffered from "the debilitating disorder dyslexia since he was a child." (Doc. No. 1 at 9.) Since 1980, plaintiff has been a member of the Talking Book Program*fn1 which allows him to borrow audio books on compact discs (CDs) and to receive them through the mail. (Id. at 11.) In 1994, following his criminal conviction, plaintiff was able to continue to participate in the Talking Book Program while incarcerated at Mule Creek State Prison.*fn2 (Id.) In 2003, his participation in that program was discontinued. (Id. at 120.) Although it was determined that plaintiff suffered from dyslexia, there was no documentation that his "Dyslexia is organic in nature." (Id.) A person is eligible to participate in the Talking Book Program if he has organic dyslexia. (Id.) In response to plaintiff's administrative appeals, it was ultimately decided by prison officials that although medical documentation was lacking, plaintiff's request to participate in the Talking Books Program would be approved "in the interest of justice." (Id., Attach 1at 65-68 of 86.)

On November 10, 2009, plaintiff was transferred back to Mule Creek State Prison after being housed at several other state facilities. (Id. at 11-12.) Plaintiff requested that the receiving and releasing department (R&R) allow him to have his tape player, CD player, cassette tapes and CDs because they are "critical to his mental health condition." (Id. at 12-13.) On January 26, 2010, plaintiff received his cassette player but not his tapes, CDs, CD player and catalogue of books. (Id. at 17.) Plaintiff filed inmate 602 grievances and requests for accommodations under the Americans With Disabilities Act. The issues raised therein were ultimately addressed in a director's level administrative decision.

The Director Level decision, dated April 1, 2010 (Log. No. MCSP-09-02150), addressed plaintiff's disability accommodation request to continue to receive audio books through the mail, to have his audio tape player in his cell, and to remain at MCSP and not be transferred. (Id. at 44.) At the second level of review, that inmate appeal was granted only as to plaintiff's request for the audio cassette player. (Id.) At that time plaintiff was informed that he could purchase and possess personal audio books but only ten cassettes and ten CDs at a time. (Id.) He was also informed by prison officials that he could check-out talking books located at the MCSP facility library. (Id.) As for plaintiff's personal property, it was noted that he arrived at MCSP with 15 boxes of property which was in excess of the six cubic feet allowed for each inmate. Plaintiff then met with the R&R sergeant to sort out items he wanted to keep and the remainder of his excess property was sent home. (Id.) At the Director's Level, plaintiff's inmate appeal was denied. (Id.) That decision noted that plaintiff had stated that he was not interested in any of the tapes among his personal property and that plaintiff had been "offered equally effective means of disability accommodation in lieu of his desired accommodations[.]" (Id. at 45.)

In a separate Director Level decision, dated July 22, 2010 (Log No. MCSP-10-00697), plaintiff's request to receive books, magazines, and audio equipment from the Library of Congress through the mail was addressed. (Id. at 52.) At the second level of review, it had been noted that in the past a process was implemented to allow plaintiff to receive audio books from outside sources. (Id.) However, it was now determined that plaintiff could check out talking books from the MCSP library, as are other inmates. (Id.) The second level decision also included the following findings:

Although the appellant [plaintiff] was not interested in this option, the warden found no necessity for implementing a special procedure to allow uncontrolled access to the requested materials through the mailroom. He has the same opportunity to check out books from the library as all other inmates, which is in compliance with the Armstrong Remedial Plan (ARP).

Review of the appellant's application for Library of Congress access revealed an institutional safety and security breach, as he failed to select the options of non-receipt of books containing violence or explicit descriptions of sex. These types of materials are not allowed in the institutional setting for any inmates in accordance with the ARPII.H.1, as the Department has a Legitimate Penological Interest, in preventing the appellant from continuing to receive unscreened material. The appellant will receive personal property through standard ...


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