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.

Ellis v. Foulk

United States District Court, E.D. California

September 18, 2014

ROBERT ELLIS, Plaintiff,
v.
F. FOULK, Warden, et al., Defendants.

ORDER

ALLISON CLAIRE, Magistrate Judge.

Plaintiff, a state prisoner proceeding pro se, 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 consented to the jurisdiction of the undersigned. ECF No. 7.

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, 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. 235-35 (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).

Plaintiff filed an amended complaint prior to the court's screening of the original complaint. As the amended complaint supersedes the original, the court will proceed to screen plaintiff's amended complaint. ECF No. 4.

Plaintiff names the following as defendants High Desert State Prison F. Foulk; [Correctional (Corr.)] Sergeant Qualls; [Corr.] Lieutenant (Lt.) Harper; [Corr.] Lt. M. Lee; Appeals Coordinator Lopez. Plaintiff alleges that on July 10, 2013, he received a disciplinary write-up "for participation in a mass hunger strike." Plaintiff alleges that defendant Qualls violated his due process rights by writing up a rules violation report (RVR) which was based not on what he himself witnessed but on what "an outgoing officer told him." Plaintiff claims that a reporting officer must see an incident in order to report it. Amended Complaint, ECF No. 4, at 1-3.

On August 4, 2013, defendant hearing officer Lt. Harper, fully aware that defendant Qualls had not witnessed the incident, found plaintiff guilty of the disciplinary infraction. Defendant Harper also denied plaintiff an investigative employee and staff assistance. Defendant Lt. M. Lee interviewed plaintiff after the disciplinary hearing and plaintiff made him aware that the RVR was "false" and that plaintiff's due process rights had been violated at the hearing; nevertheless, defendant Lee found plaintiff guilty based on the report. Plaintiff appealed and defendant Lopez, appeals coordinator, also ignored the alleged due process violations. Id. at 3-4.

As relief, plaintiff seeks expungement of the RVR from his case file, that his "score sheet" be reduced by "8 points, " and that defendants be demoted and retrained. Id. at 3.

Appropriate Vehicle

It is not entirely clear whether or not plaintiff is seeking restoration of time credits. If so, the appropriate vehicle for relief would be ...


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.