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).
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1989), superseded by statute as stated in Lopez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).
names nine individuals as defendants, including S. Kernan,
Secretary of the California Department of Corrections and
Rehabilitation (“CDCR”), and E. Arnold, Warden of
California State Prison, Solano (“CSP-SOL”).
Plaintiff claims violation of his First, Eighth, Ninth, and
Fourteenth Amendment rights. (ECF No. 1 at 4.) However, his
specific claims are unclear. Plaintiff expresses bitterness
over his underlying criminal proceedings. (ECF No. 1 at 5.)
He claims he has been designated as an irritant to staff,
both medical and custody, because he asserts his rights and
disturbs the status quo. (ECF No. 1 at 5-6.) In the injuries
portion of the complaint form, plaintiff states:
There was an incident which could be construed as use of
excessive force by staff and resulting in some bumps and
bruises to the side of [his] face, but most of [his] injuries
come from the irreparable harm(s) in violation of [his]
constitutional rights to seek redress of grievances, to due
process, and equal protection, and deliberate indifference to
medical needs, and protection against cruel and inhuman
punishment under the Eighth Amendment.
(ECF No. 1 at 6.) Plaintiff seeks preliminary injunctive
relief,  including an order enjoining defendants
from transferring plaintiff from CSP-SOL pending treatment;
reserves claim for money damages in amended claim; and
require defendants to secure leave of court before plaintiff
can be transferred. (Id.)
Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983. The statute plainly requires that
there be an actual connection or link between the actions of
the defendants and the deprivation alleged to have been
suffered by plaintiff. See Monell v. Department
of Social Servs., 436 U.S. 658 (1978); Rizzo v.
Goode, 423 U.S. 362 (1976). The Ninth Circuit has held
that “[a] person ‘subjects' another to the
deprivation of a constitutional right, within the meaning of
section 1983, if he does an affirmative act, participates in
another's affirmative acts, or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made.” Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
plaintiff fails to link the individuals named as defendants
to any alleged constitutional violation. In other words,
plaintiff failed to include charging allegations as to each
named defendant. Plaintiff will be given leave to cure this
deficiency. If plaintiff elects to amend his complaint, he
must allege what each defendant did that resulted in a
violation of plaintiff's constitutional rights.