United States District Court, E.D. California
ORDER & FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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).
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.
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).
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. §
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.
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).
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.)
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).
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 ...