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).
Motion to Proceed In Forma Pauperis
The certificate portion of plaintiff's motion to proceed in forma pauperis, which must be completed by plaintiff's institution of incarceration, has not been filled out. Also, the court has not received a certified copy of plaintiff's prison trust account statement for the six month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Accordingly, the court will deny the current motion (Doc. No. 2) and instruct plaintiff to file a new application.
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, who is currently a prisoner at High Desert State Prison, alleges that he personally witnessed defendant Brown handcuff another inmate, and then kick out the legs from under the inmate. See Doc. No. 1 at 5. Plaintiff alleges that in his building there have been 3 or 4 avoidable deaths in the last fifteen months. Id. Plaintiff appears to allege that inmates are seeking cell changes because they fear for their lives. Id.
As relief, plaintiff seeks: (1) investigation of his claims by the Federal Bureau of Investigation; (2) five million dollars, for the families of the dead and injured inmates; and (3) an injunctive order to stop ordering incompatible inmates to be cellmates. See Doc. No. 1 at 5.
Plaintiff adds to his complaint a "Notice of Urgency," which reads that plaintiff has been advised by an unnamed sergeant not to file any more paperwork against defendant Brown, which advice plaintiff takes to be a threat. See Doc. No. 1 at 6.
The inmate/parolee appeal forms attached to plaintiff's complaint read that he has raised with the prison "On going acts of extortion and staff misconduct." See Doc. No. 1 at 7. Plaintiff appears to allege that another inmate was murdered after the other ...