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Johnson v. Fox

United States District Court, E.D. California

November 6, 2017

HERBERT JOHNSON, Plaintiff,
v.
ROBERT W. FOX, Defendant.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         BACKGROUND

         Plaintiff 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.)

         On 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.)

         In May 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 district.

         On July 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.

         SCREENING

         I. Legal Standards

         The 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).

         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 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)).

         However, 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 (1969).

         The Civil Rights Act under which this action was filed provides as follows:

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 ...

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