United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action under 42 U.S.C. § 1983.
Before the court are plaintiff's recent filings, which
appear to be an attempt to state claims as a second amended
complaint. Below, the court screens these new filings and
finds that plaintiff has failed to state any claims
cognizable under § 1983. The court will provide
plaintiff one final opportunity to file an amended complaint.
filed his original complaint here on October 7, 2016. Shortly
thereafter, he filed a first amended complaint and multiple
motions for various things, including amending his complaint
and for injunctions to stop harassment. In his first amended
complaint, plaintiff appeared to be alleging that he was
denied yard time by defendants Powell and Berlin, that he was
written up for refusing to take a COMPAS test by defendant
Berlin, and that defendant Haile violated his Eighth
Amendment rights by sending him to physical therapy for his
chronic knee pain. (ECF No. 8.)
screening, the court found plaintiff's complaint vague
and that it stated no cognizable claims. The court provided
plaintiff the legal standards for alleging an Eighth
Amendment claim regarding the conditions of his confinement,
informed plaintiff that his allegations regarding the COMPAS
test did not amount to a constitutional violation, and
advised plaintiff about the requirements for exhausting his
administrative remedies before bringing a suit in this court.
The court then instructed plaintiff on filing an amended
complaint and provided him with a copy of the prisoner
complaint form used in this district. (ECF No. 26.)
2017, plaintiff filed a document indicating he wished to
close this case. After the undersigned recommended dismissal,
plaintiff filed objections from which the court determined he
did not, in fact, wish to dismiss this case. In an order
filed June 30, 2017, plaintiff was given an additional sixty
days to file an amended complaint based on his assertions
that he had not had access to his legal property during a
period of time that he was in segregated housing. (ECF Nos.
32, 34.) At that time, plaintiff was again provided a copy of
the form for prisoner complaints that is used in this
28, 2017, plaintiff filed a document entitled simply
“Claim for Relief.” (ECF No. 35.) On August 1,
plaintiff filed a second document entitled “Pleading to
Judge.” (ECF No. 36.) Because it appears plaintiff is
attempting to allege claims in these documents, the court
liberally construes these filings as plaintiff's second
amended complaint and screens them below.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).
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 where 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 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.” Bell
Atlantic, 550 U.S. at 555. In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hospital Bldg.
Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),
construe the pleading in the light most favorable to the
plaintiff, and resolve all doubts in the plaintiff's
favor. Jenkins v. McKeithen, 395 U.S. 411, 421
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 ...