United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
August 28, 2017, plaintiff requested leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff
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
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
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's 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 when 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1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) 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)). In order to survive dismissal for
failure to state a claim, a complaint must contain more than
“a formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. at 555. However, “[s]pecific
facts are not necessary; the statement [of facts] need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atlantic, 550 U.S. at 555, citations
and internal quotations marks omitted). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
claims that on June 19, 2017, defendant Blandion stopped
plaintiff as he was leaving group, and told plaintiff
“we haven't forgot [sic] what you done [sic] to the
two CDC ISU officers Lt. Lee and Officer Bosh at Vacaville
prison hospital in 2010 and 2011. You put the federal courts
on them, on the CDC staff. . . . After this case is over,
that you have on one of the medical staff here . . . I am
going to tell the inmates here that you're a snitch, a
rat, . . . for they would stab you. For we could pay you
back, for what you did to the ISU officers at Vacaville
Prison Hospital, and get you transferred out of here.”
(ECF No. 1 at 3.) Plaintiff asks the court to “put a
restraining order on the prison hospital so nothing . . .
happens to [plaintiff].” (ECF No. 1 at 4.)
plaintiff requests relief that is too broad. The Prison
Litigation Reform Act (“PLRA”) requires prisoners
to satisfy additional requirements when seeking preliminary
injunctive relief against prison officials:
Preliminary injunctive relief must be narrowly drawn, extend
no further than necessary to correct the harm the court finds
requires preliminary relief, and be the least intrusive means
necessary to correct that harm. The court shall give
substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of comity
set out in paragraph (1)(B) in tailoring any preliminary
18 U.S.C. § 3626(a)(2). Section 3626(a)(2) places
significant limits upon a court's power to grant
preliminary injunctive relief to inmates, and “operates
simultaneously to restrict the equity jurisdiction of federal
courts and to protect the bargaining power of prison
administrators -- no longer may courts grant or approve
relief that binds prison administrators to do more than the
constitutional minimum.” Gilmore v. People of the
State of California, 220 F.3d 987, 998-99 (9th Cir.
the court has reviewed plaintiff's filings in the Eastern
District. Plaintiff's case, Herrera v. Gardner, Lee
& Borsch, Case No. 2:10-cv-1744 GEB EFB, was
dismissed on May 10, 2012, based on plaintiff's failure
to exhaust administrative remedies prior to filing the
action. At present, only two cases are pending for plaintiff:
this action, and Herrera v. Idemudia, Case No.
2:17-cv-1043 EFB, in which plaintiff contends that the
“law library lady” told inmates that plaintiff
was a snitch, a rat, and the inmates could stab him.
Id. (ECF No. 5 at 3.) In an earlier pleading in that
case, plaintiff claimed that on June 1, 2017, nurse Candia
told plaintiff that once his federal case is over “we
are going to pay you back and tell the other inmates that you
are a snitch and that way the inmates will stab
plaintiff.” Id. (ECF No. 4 at 3.) On August
17, 2017, plaintiff filed a letter in that case stating that
on August 15, 2017, nurse Mageria told plaintiff that when
all of his civil cases were done, the nurse would tell CDCR
staff to transfer plaintiff out, and also tell the inmates
plaintiff is a rat and that they would stab him. Id.
(ECF No. 18.)
the instant incident occurred on June 19, 2017, and plaintiff
appears to concede that he did not attempt to exhaust his
administrative remedies. (ECF No. 1 at 3.)
prisoner may bring no § 1983 action until he has
exhausted such administrative remedies as are available to
him. 42 U.S.C. § 1997e(a). The requirement is mandatory.
Booth v. Churner, 532 U.S. 731, 741 (2001).
California prisoners or parolees may appeal
“departmental policies, decisions, actions, conditions,
or omissions that have a material adverse effect on the[ir]
welfare. . . .” Cal. Code Regs. tit. 15, §§
3084.1, et seq. An appeal must be presented on a CDC form 602
that asks simply that the prisoner “describe the
problem” and “action requested.” Therefore,
this court ordinarily will review only claims against ...