United States District Court, E.D. California
KENNETH B. GIBBS, Plaintiff,
J.R. BRADFORD, et al., Defendants.
ALLISON CLAIRE, 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).
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 (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 names as defendants at California State Prison Sacramento (CSPS): Librarians J.R. Bradford and S. Casto; Correctional Sergeant Cross; Correctional Officers (COs) Advincula and Aubert; and Clinician H. Waddle. Plaintiff alleges that on December 6, 2013, defendants Bradford and Casto were aware that a library clerk named Jeffrey (non-party) was assisting plaintiff with his court deadlines but acted "in concert with custody" in hindering his law library access. Defendant Bradford cancelled plaintiff's PLU (priority legal user) status and sent him GLU (general legal user) ducats which allowed custody to cancel the ducats and deny plaintiff law library access. Defendant Casto closed the library for a week, denying plaintiff access to the library and to his legal assistant and denied his legal assistant computer access to work on plaintiff's opposition to defendants' motion to dismiss (in an unidentified case). This was done in retaliation for plaintiff's having filed lawsuits against officials at Pelican Bay. Complaint, ECF No. 8 at 7-8.
On January 10, 2013,  custody cancelled plaintiff's GLU ducat. On January 13, 2013, plaintiff had an 8:00 a.m. ducat for the library but when he went to the library, it was closed. When on January 18, 2013, plaintiff told defendant Advincula that he had a GLU library ducat, CO Advincula told him it had been cancelled. Defendant Advincula refused to let him go even after plaintiff told Advincula he needed to go to the library because he had court deadlines. Plaintiff then asked to be able to speak to defendant Cross and to defendant Clinician Waddle but was refused by Advincula. Five minutes later, defendant Advincula told him he was escorting plaintiff to the library. Id. at 8-9.
When plaintiff arrived at the library, plaintiff asked defendant Casto why she had closed the library. Defendant Casto then said that plaintiff had had an 8:00 a.m. ducat on December 13th but an earlier incident on the yard caused program modification, including library closure for the rest of the day. (Plaintiff earlier referred to the library as having been closed on January 13, 2013 but here refers to its having been closed on December 13th). Plaintiff claims there was no yard incident and appears to be saying that the library had never opened that day. Id. at 9 and CDCR 22 request for interview form at 28.
On December 27, 2013, plaintiff asked defendant Advincula if he could speak with defendant Cross and when Advincula asked why, plaintiff told him he was being denied access to the library by second watch officers and harassed by officers on third watch. Defendant Advincula told plaintiff "okay, " also letting plaintiff know that he was getting a cellmate. Although plaintiff told him he "was ...