United States District Court, E.D. California
ALLISON CLAIRE 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.
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). ECF No. 4.
Request to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF No. 2. 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
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).
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.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log
Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
In reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hosp. Bldg. Co. v. Trs. of Rex Hosp., 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).
complaint, plaintiff alleges that he was stabbed in a prison
yard “race riot” at California State
Prison-Solano and sustained several injuries, including
a collapsed lung. ECF No. 1 at 5-6. Plaintiff asserts that
“[i]t is customary for Solano correctional officers to
observe a disturbance and respond after the disturbance has
become an incident.” Id. at 4. With the
respect to the incident at issue here, plaintiff alleges that
defendants observed “Hispanic and black inmates pushing
and shoving on the football field, but failed to prevent
further disturbance.” Id. at 5. Plaintiff
alleges that defendant Hilton “observed a mass of
inmates moving from the baseball diamond, out of his sight,
to the front of building (4) then, a racial riot broke out
and several inmates attempted to murder [plaintiff].”
Id. Plaintiff further claims that defendant Hilton
admitted to plaintiff that he had observed “the pushing
and shoving on the football field” and asked plaintiff
whether he was a part of it. Id. Plaintiff argues
that defendants failed to protect him “when they could
have prevented the race riot before it happened.”
Id. at 6. Plaintiff alleges that “[h]ad they
called a code when the pushing and shoving happened, [he]
never would have been stabbed.” Id.
seeks monetary damages under 42 U.S.C. § 1983 against
defendants for failing to prevent the riot that resulted in
the stabbing of plaintiff. Id. at 6.
the “Parties” section of the complaint, plaintiff
identifies only correctional officer Hilton as a defendant.
Id. at 2. The body of the complaint, however, also
refers generally to “defendants” and correctional