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, 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). He
consented to proceed before the undersigned for all purposes.
See 28 U.S.C. § 636(c).
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.
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1989), superseded by statute as stated in Lopez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).
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).
contends that he is denied equal protection and subjected to
age discrimination in violation of the Eighth and Fourteenth
Amendments by prison regulations requiring that inmates 65
and older be deemed “high risk medical”
regardless of their medical issues.
“age is not a suspect classification.”
Gregory v. Ashcroft, 501 U.S. 452, 470 (1991).
Therefore, plaintiff cannot state an equal protection claim
for discrimination. See Barren v. Harrington, 152
F.3d 1193, 1194-95 (9th Cir. 1998) (failure to demonstrate
membership in a protected class means plaintiff has not
stated an equal protection clause claim).
inmates do not have a constitutional right to be housed at a
particular facility or institution or to be transferred, or
not transferred, from one facility or institution to another.
Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983);
Meachum v. Fano, 427 U.S. 215, 224-25 (1976);
Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991)
(per curiam). Nor does an inmate have a constitutional right
to any particular classification. Moody v. Daggett,
429 U.S. 78, 88 n.9 (1976); Hernandez v. Johnston,
833 F.2d 1316, 1318 (9th Cir. 1987). Alleged deprivations of
rights arising from prison officials' housing and
classification decisions do not give rise to a federal
constitutional claim encompassed by the Fourteenth Amendment.
Board of Regents v. Roth, 408 U.S. 564, 569 (1972).
sets forth no factual allegations that suggest an Eighth
plaintiff's complaint must be dismissed. Although it does
not appear that plaintiff can amend his complaint to state a
cognizable claim, in an abundance of caution, ...