Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Howard v. Virga

United States District Court, E.D. California

March 31, 2014

GREGORY E. HOWARD, Plaintiff,
v.
TIME V. VIRGA, et al., Defendants.

ORDER

DALE A. DROZD, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested 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).

I. In Forma Pauperis Application

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).

II. Screening Requirement

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.

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).

The court finds that the allegations of plaintiff's complaint are so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. Moreover, plaintiff's complaint does not contain a short and plain statement as required by Fed.R.Civ.P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency , 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity the overt acts which defendants engaged in that support his the claimed violations of his rights. Id . Because plaintiff has failed to comply with the requirements of Federal Rule of Civil Procedure 8(a)(2), the complaint must be dismissed. The court will, however, grant plaintiff leave to file an amended complaint if he wishes to attempt to proceed with this action and will provide him with the legal standards governing the claims it appears he is attempting to bring.

III. Retaliation

It is well-established that prison inmates have a constitutional right to freedom from retaliation for engaging in activity protected by the First Amendment, including pursuing "civil rights litigation in the courts.'" Rhodes v. Robinson , 408 F.3d 559, 566 (9th Cir.2005) (quoting Schroeder v. McDonald , 55 F.3d 454, 461 (9th Cir.1995)). A retaliation claim brought by a prisoner plaintiff has five elements. First, plaintiff must allege and show that he engaged in conduct protected by the First Amendment. See Watison v. Carter , 668 F.3d 1108, 1114 (9th Cir.2012). Second, a "plaintiff must claim that the defendant took adverse action against the plaintiff." Id . (citing Rhodes , 408 F.3d at 567). "The adverse action need not be an independent constitutional violation." Id . (citing Pratt v. Rowland , 65 F.3d 802, 806 (9th Cir.1995). Third, plaintiff must allege and show a causal connection between the protected conduct and the adverse action. Id . Fourth, the plaintiff must allege and prove either a chilling effect on the exercise of First Amendment rights or some other harm. Id . Finally, plaintiff must allege and show that the retaliatory action "did not advance legitimate goals of the correctional institution.'" Id . (quoting Rizzo v. Dawson , 778 F.2d 527, 532 (9th Cir.1985)).

In his complaint, plaintiff alleges that he suffered retaliation when he was removed from single-cell status on July 24, 2012. However, plaintiff does not allege facts explaining what protected conduct he claims he was engaged in that resulted in the alleged retaliation. Plaintiff also has not alleged facts showing a causal link between his protected conduct and the alleged retaliatory action. In addition, in his complaint plaintiff has not made any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.