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Herrera v. Blandion

United States District Court, E.D. California

September 1, 2017

ARMANDO HERRERA, Plaintiff,
v.
BLANDION, Defendant.

          ORDER

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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).

         On 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.

         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 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).

         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 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.

         Rule 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).

         Plaintiff 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.)

         First, 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 relief.

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. 2000).

         Second, 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.)

         Third, 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.)

         A 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 ...


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