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. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
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 will be 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 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. § 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 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, ___ U.S. ___, 129 S.Ct. 1937, 1949 (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 alleges that some twenty defendants have placed his life in jeopardy by failing to protect him "from the constant threat of violence at California State Prison-Sacramento, as a form of retaliation" for plaintiff's having provided testimony against a number of "corrupted correctional staff within the CDCR.*fn1 " Complaint, pp. 1-2, 3-5. Plaintiff's claims hark back to December 2003, when plaintiff was housed at California State Prison - Sacramento and reported to a Special Agent Jill Chapman at the Office of Internal Affairs that a correctional officer was engaged in sexual misconduct at CSP-Sac. Id., at 6. Without naming any defendant or providing any dates or circumstances, plaintiff contends he was himself the victim of sexual assault and sexual harassment during the investigation which resulted in the termination of the CDCR staff member on whom he reported. Id. Following plaintiff's Jan. 2004 transfer to Salinas Valley State Prison (SVSP) for therapeutic reasons, on Feb. 9, 2004, a psych tech "attempted to solicit" plaintiff to take part in some form of (undefined) criminal behavior after which plaintiff on Feb. 11, 2004, reported this to the prison's investigator, a Lieutenant A. Middlebrooks. Id. As a result of the subsequent internal investigation, the psych tech plaintiff reported on was arrested and his CDCR employment terminated. Id.
Plaintiff contends that on Feb. 3, 2004 (i.e., prior to the alleged misconduct or criminal activity by the SVSP psych tech), plaintiff appeared before the Unit Classification Committee (UCC) at SVSP at Special Agent Chapman's request; an associate warden then referred plaintiff to a classification staff rep. at CDCR headquarters to be transferred for his safety to California Medical Facility (CMF). Cmp., p. 6. Although plaintiff contends that this was to protect him from further acts of retaliation at SVSP or other Level IV prisons, he does not specify any such acts prior to this time at SVSP.
Plaintiff contends that he "learned" that some CSP-Sac prison officials were trying to set him up to be killed for his having reported the officer, Mary Barrett, for sexual misconduct. Cmp., p. 7. Apparently, plaintiff was informed by an inmate named Hackett, CDCR # K23395, that defendant Vance and a Counselor Kennedy (who plaintiff for some reason does not name as a defendant) had had him (Hackett) transferred from CSP-Sac to SVSP to try to prevent plaintiff from testifying against Barrett. Id. In March, 2004, plaintiff reported what Hackett had said about some of CSP-Sac prison staff to Lt. Middlebrooks who in turn reported it to Special Agent Chapman, but this investigation was not conducted "in a timely manner," resulting in a number of allegedly retaliatory transfers imposed on plaintiff. Id.
Plaintiff provided testimony against Barrett before the state personnel board in June of 2004 and was returned to SVSP "without incident." Cmp., at 7. Plaintiff alleges that he was transferred in September 2004 to High Desert State Prison and denied mental health treatment in violation of the Coleman v. Wilson class action but he names no defendant as responsible for the denial. Id. In any event, plaintiff then goes on to assert that in March of 2004 Coleman attorneys asked that plaintiff be transferred to a different level of care.*fn2 Id. Plaintiff then states that racial tensions had HDSP on lockdown when he arrived, and in January 2005, he was placed in the ASU*fn3 by prison officials (unnamed) who falsely alleged he was conspiring to murder staff. Id., at 8. Plaintiff alleges that in March 2005, an Officer Cole (not named as a defendant) "attempted to solicit plaintiff to conspire with him to assault another inmate." Id. Plaintiff reported Officer Cole's alleged effort to have the inmate assaulted and killed, resulting in another internal investigation. Id.
Plaintiff was transferred back to CSP-Sac in the ASU/EOP*fn4
section and was told by several inmates that prison officials
including defendants Vance and Garcia were telling other inmates that
plaintiff was a "snitch" because of his having reported Barrett and
because he would be testifying against her. Cmp., p. 8. When
plaintiff's attorney informed defendants Kernan and Walker of the
situation, she was told that the allegations would be investigated;
plaintiff claims that he believes they conducted "a poor
investigation, which resulted in plaintiff being physically assaulted
on two occasions." Id., at 8-9. Plaintiff does not at that point
provide any description whatever of the circumstances of the two
claimed assaults. Instead, plaintiff simply alleges that defendants
Kernan, Walker, Lizirrage, Vance, Leiber, Baughman, Mini and Garcia
knew or should have known that plaintiff's transfer to CSP-Sac did not
advance a legitimate penological goal. Id., at 9. He also claims that
these same defendants plus defendants Cate, Clough, Donahoo, Williams
Rios, Towns and Lee knew or should have known that plaintiff provided
testimony against Officer Barrett and that "some staff and inmate task
force inmates" were "mad" about it and that plaintiff's life would be
in danger at CSP-Sac. Id.
Plaintiff filed an inmate appeal on Oct. 13, 2006, concerning some (unnamed) alleged prison staff involvement in a conspiracy to have plaintiff assaulted or murdered for having reported the sexual misconduct of Officer Barrett. Cmp., p. 9. Although plaintiff states that he himself did not observe it, plaintiff claims that a C/O*fn5 Williamson (not a party) reported, on Oct. 20, 2006, that another inmate had attempted to assault plaintiff while he was in the mental health treatment area. Id. Plaintiff then goes on to describe how in Aug. 2007, when plaintiff was before an Institutional Classification Committee (ICC), defendant Vance told the ICC that plaintiff could not return to A-facility "due to an alleged confidential enemy situation." Id., at 10. The chairperson reviewed plaintiff's c-file and determined that there were two non-confidential enemies listed but plaintiff did not consider them enemies and ultimately had them removed as enemies. Id. Plaintiff was placed in B-facility as he had earlier requested. Id. Plaintiff then goes on to relate that the control booth officer in B-facility, on Aug. 22, 2007 refused to let him go to the yard due to an enemy concern and that the lieutenant did not want to take the risk. Cmp., p. 11. The control booth officer later told plaintiff that there was an inmate on B-yard who had "snitched on plaintiff, and other Crips and Bloods" about their alleged conspiracy to murder HDSP staff. Id. Plaintiff believed that the officer was trying to mislead him but he nevertheless alleges that defendants Kernan, ...