Johnson v. Perry

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, currently incarcerated at California State Prison Sacramento, who proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff requests to proceed in forma pauperis and for appointment of counsel. Plaintiff has consented to the jurisdiction of the undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). See ECF No. 5. For the reasons set forth below, the court grants plaintiff's application to proceed in forma pauperis; dismisses plaintiff's complaint with leave to file a First Amended Complaint; and denies without prejudice plaintiff's request for appointment of counsel.

         I. In Forma Pauperis Application

         Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff's 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 of Plaintiff's Verified Complaint

         A. Plaintiff's Allegations

         Plaintiff seeks $50 million in damages against nineteen defendants for conduct that allegedly occurred at High Desert State Prison (HDSP) during plaintiff's incarceration there.

         Plaintiff initially alleges that, after reporting the sexual misconduct of a correctional officer, plaintiff was accused of being a snitch by correctional staff and inmates alike, and feared for his safety. On March 14, 2014, plaintiff was charged with the manufacture of a deadly weapon and moved to the Administrative Segregation Unit (ASU). Although found guilty of the charge, the committee concluded that plaintiff "was never actually in Possession of a Weapon." See ECF No. 1 at 20. Plaintiff alleges that while he was housed in the ASU, correctional staff contaminated his food with semen and excrement.

         Plaintiff was released from the ASU, and returned to the general population, in July 2014. In October 2014, a correctional officer told other inmates that plaintiff was, among other things, homosexual and a child molester. Id. at 8. Plaintiff was ostracized by other inmates and again felt that his safety was in danger. On October 17, 2014, plaintiff was "assaulted by an inmate at the order of custody members." Id. Plaintiff was placed in a holding cage, where he heard correctional staff talking about him, including one staff member "conversing about petitioner's family and how he obtained petitioner's juvenile and medical records." Id. at 9. On November 17, 2014, plaintiff heard one inmate state to another, "Ain't y'all suppose to be stabbing him today?" Id. Due to fear for his safety, plaintiff refused to come out of his cell for thirty days and wrote to the superior court.

         On November 27, 2014, plaintiff overheard a correctional officer telling one of plaintiff's psychiatrists confidential information about plaintiff. Id. at 10. Correctional staff were rude to plaintiff and made threatening statements. Id. at 10-1. Witnessing correctional staff failed to intervene. Id. at 12.

         Plaintiff alleges that his attempts to submit administrative grievances were thwarted by prison officials in November and December 2014. Id. at 10-1. In addition, correctional staff failed to process plaintiff's outgoing mail. Id. at 11. On the form portion of his complaint, plaintiff states that he did not exhaust the grievance process. Id. at 2.

         In January and February 2015, plaintiff received "tainted" food, which included a correctional officer's saliva. Id. at 12. On June 30, 2015, following a committee hearing, plaintiff's psychiatrist questioned committee members about their harassment of plaintiff, asking "When are you guys going to stop messing with him?" One officer reportedly responded, "Everything will be over when he gets stabbed. We've been talking to some of the guys so things will be over with soon." Id. at 13.

         On July 1, 2015, plaintiff was attacked by two inmates and sustained facial injuries (bruises, not lacerations). See id. at 13-4, 36-7. Plaintiff alleges that custody staff watched the attack and allowed it to proceed for about three minutes before intervening. At the infirmary, a nurse reportedly told plaintiff: "See what we made happen? See how we do? This is what happens when you [mess] with us, this is how High Desert does it." Id. at 13. Plaintiff was taken to the hospital where custody staff shared a picture of plaintiff's swollen face and said, "Look what we did to Johnson." Id. After his return to HDSP, correctional staff failed to seriously consider plaintiff's safety fears. Id. at 13-4.

         On July 6, 2015, plaintiff's evening meal included an "unknown substance" that made him very ill. Plaintiff heard correctional staff express concern that the "substance" was not supposed to make plaintiff die, which plaintiff construes as an admission that staff placed the substance in his food. Id. at 14.

         Finally, plaintiff alleges that "some time in February of 2016, petitioner received reports from an internal affairs investigation at High Desert State Prison." Id. at 14.

         B. Legal Standards for Screening Prisoner Civil Rights Complaint

         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).

         Rule 8 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)). "[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To survive dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (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. The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of "entitlement to relief."'" Id. (quoting Twombly, 550 U.S. at 557).

         A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         C. Screening of ...