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Washington v. Rackley

United States District Court, E.D. California

August 1, 2016

KURT WASHINGTON, Plaintiff,
v.
RONALD RACKLEY, et al., Defendants.

          ORDER & FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         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).

         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 separate order, the court will direct the appropriate agency to collect twenty percent of the preceding month’s income credited to plaintiff’s prison trust account and forward it 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 Standard

         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.

         In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. 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.” Iqbal, 129 S.Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         III. Discussion

         A. Allegations

         Plaintiff is serving an indeterminate life sentence in state prison. (ECF No. 1 at 4.) In 2012, he pled guilty to a disciplinary charge of possessing a note, although he maintained he did not know the content or context of the note. (Id. at 3.) Based on the note, he was found guilty of promoting gang activity. (Id.) Plaintiff challenges his June 2012 disciplinary conviction for gang activity, for which he was assessed a ninety-day credit loss. (Id. at 4, 6.) Plaintiff argues that this conviction was not supported by the evidence, as he had no documented association with any gang, let alone a Northern Hispanic gang, as he is a 62-year-old African-American male from Southern California. (Id. at 7, 16-23.) Plaintiff asserts the disciplinary conviction creates a significant hardship, as he was denied parole based on the finding of gang activity and “has to worry about retaliation from all the gangs” while in prison. (Id. at 17.) He seeks relief in the form of expungement of the 2012 disciplinary conviction for gang activity. (Id. at 3, 25.)

         Plaintiff names four defendants: Rackley, the Warden of Folsom State Prison (FSP), where plaintiff currently resides; Davis, the Associate Warden at Pleasant Valley State Prison (PVSP), who “was responsible for authorizing and signing off on” the disciplinary conviction (id. at 5); Lozano, the Chief of the Office for Appeals, who “improperly screened out” plaintiff’s administrative grievance on the issue (id. at 5-6); and Ybarra, a Correctional Lieutenant at PVSP who conducted the disciplinary hearing for the challenged conviction (id. at 6).

         Plaintiff filed a federal habeas action challenging the disciplinary conviction, No. 2:14-cv-2620 MCE EFB P, which was dismissed on February 17, 2016 for falling outside the reach of federal habeas jurisdiction; however, the court noted that ...


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