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Robin Gillen Starr v. Jeff Reisig

February 19, 2013


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 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

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). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall 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. 28 U.S.C. § 1915(b)(2).

The Complaint

Screening Requirements 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, 555 (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, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "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 (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 (1969).

Summary of the Complaint

At the outset, the court notes that plaintiff's initial pleading is entitled "Class Action Complaint Re: 42 U.S.C. § 1983 28 U.S.C. § 2254 (Petition for Habeas Corpus)." See ECF No. 1 at 1. A review of the complaint reflects that plaintiff appears to be rasing claims in connection with plaintiff's December 11, 2009 conviction for transportation of a controlled substance, and the 2007 arrest which led to the conviction. See ECF No. 1 at 4, 13. For instance, plaintiff alleges that he was illegally searched in violation of the Fourth Amendment; that he was illegally charged, in violation of the Double Jeopardy Clause; and that his sentence was illegally enhanced using prior convictions.

Plaintiff also raises a variety of other claims which appear to arise from his current conditions of confinement. First, plaintiff appears to allege some kind of excessive force claim again defendant Matthew Cate, "who was at all time responsible for all employee(s) actions in CDCR. . . .For torture on 7/10/11 by Lt. Arnold, Lt. Broderick, Sgt. Fell, and head wound on 8/31/11 by Lt. Tyler/C/O Borges." ECF No. 1 at 2-3, ¶ 4. Plaintiff raises these dates again in what could be a medical care claim: "For torture on 7/10/11 and assault on 8/31/11 and Du Santi and Appleguist on ride to H.D.S.P. injured to head! Surgery 9/4/11 Dr. Smith!" ECF No. 1 at 7. Plaintiff provides no other information about the July, August, and September 2011 incidents.

Plaintiff additionally accuses the state of California of charging heavier penalties than the law allows, of slandering inmates' names and reputations, and of slavery. ECF No. 1 at 1.

It appears from review of the complaint that plaintiff seeks declaratory relief, injunctive relief, compensatory damages of $50,000 and punitive damages of $50 million. ECF No. 1 at 5, ¶ 20 - 7, ¶ 31.

The injunctive relief sought by plaintiff appears to be (1) reversal of plaintiff's conviction; (2) plaintiff's immediate release; (3) expungement of all "negative entries" in plaintiff's records; (4) a permanent injunction for the state "to stop using unverified documents in courts"; and (5) a permanent injunction on the use of priors and strikes, presumably in sentencing. Plaintiff appears to seeks this relief in the forms of both a temporary restraining order and a permanent injunction. ECF No. 1 at 2, ¶¶ 1-2; 6, ¶ 25; 16.

Also as part of his requested relief, plaintiff asks that the court "[s]top phone contracts ripping off inmate families!" ECF No. 1 at 6, ΒΆ 26. Plaintiff also asks the court to enter an order restraining state employees from denying copies, paper, envelopes, ...

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