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). On August 1, 2011, plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 5.
I. Application 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. Plaintiff was refused his $200 "parole/gate money" after he was released from the Sierra Conservation Center (SCC) in March of 2011. From SCC, plaintiff was transported to the Los Angeles County Jail on an outstanding warrant upon which plaintiff contends he had already completed service of his sentence. Because plaintiff did not receive the parole/gate money upon his release from SCC, he had to borrow money from relatives and apply for food stamps. Plaintiff names as defendants the California Department of Corrections, the warden of Folsom State Prison, the warden of the Sierra Conservation Center, and the supervisor of the Long Beach Parole Office. In terms of relief, plaintiff seeks a court order requiring the California Department of Corrections and Rehabilitations and the Long Beach Parole Office to reimburse him the $200 gate money and to void all of his restitution fines.
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Thus, the statute requires that plaintiff allege
that he was deprived of a right under the U.S. Constitution or federal
statute. In this case, plaintiff's allegation that he was
entitled to "gate money" upon his release from SCC is based solely
upon a California statute and a related state regulation.*fn1
Therefore, plaintiff has failed to allege a cognizable
federal claim for relief. See Beard v. Crenshaw, No. CV 08-06349 GW
(RZ), 2008 WL 4570272, at *5 (C.D. Cal. Oct. 14, 2008) (holding that
plaintiff's claim that he was not provided funds upon his release from
jail fails to allege any violation of federal law), order adopting
report and recommendation, 2009 WL 982634 (C.D. Cal. April 10, 2009).
In addition, the court may not ...