United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a civil rights
complaint filed pursuant to 42 U.S.C. § 1983, a request
to proceed in forma pauperis pursuant to 28 U.S.C. §
1915, and a request for appointment of counsel. Plaintiff
challenges the alleged failure of Tim Virga, former Warden of
California State Prison-Sacramento (CSP-SAC), to timely
process plaintiff's mail during his prior incarceration
at CSP-SAC. Plaintiff is currently incarcerated at the
California Health Care Facility (CHCF) in Stockton.
action is referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302(c). For the reasons that follow, this
court recommends the dismissal of this action without leave
to amend, and the denial as moot of plaintiff's requests
to proceed in forma pauperis and for appointment of counsel.
In Forma Pauperis Application
has submitted an affidavit and prison trust account statement
(although unverified) that make the showing required by 28
U.S.C. § 1915(a). Nevertheless, because this court
recommends dismissal of this action without leave to amend,
the court further recommends that plaintiff's request to
proceed in forma pauperis be denied as moot.
Legal Standards for Screening Prisoner Civil Rights
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).
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)).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly at 555). To survive dismissal for failure to
state a claim, “a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.'”
Iqbal at 678 (quoting Twombly at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to
a ‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly at
556). “Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to
relief.”'” Id. (quoting
Twombly at 557).
se litigant is entitled to notice of the deficiencies in the
complaint and an opportunity to amend, unless the
complaint's deficiencies cannot be cured by amendment.
See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.
Screening of Plaintiff's Complaint
Allegations of Plaintiff's Complaint
three-page form complaint, without exhibits, makes the
following allegations against sole named defendant former
Warden Virga, see ECF No. 1 at 3:
I was working on my appeal of murder charge and for family
visits for lifers in 2009 while in New Folsom Prison
[CSP-SAC]. My legal mail was held for 2-3 years to politics,
courts, attorneys. The Warden Tim Virga from New Folsom
Prison in Sac, Cal. wrote me April 20, 2012 that mail was
barely send [sic] after 3 ...