United States District Court, E.D. California
GILROY E. JOHNSON, Plaintiff,
SUZANNE M. PERRY, et al., Defendants.
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
In Forma Pauperis Application
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.
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).
Screening of Plaintiff's Verified Complaint
seeks $50 million in damages against nineteen defendants for
conduct that allegedly occurred at High Desert State Prison
(HDSP) during plaintiff's incarceration there.
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.
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.
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.
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.
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.
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.
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.
plaintiff alleges that "some time in February of 2016,
petitioner received reports from an internal affairs
investigation at High Desert State Prison." Id.
Legal Standards for Screening Prisoner Civil Rights
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).
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,
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).
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.
Screening of ...