United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner at the Correctional Training Facility
(CTF) in Soledad, under the authority of the California
Department of Corrections and Rehabilitation (CDCR).
Plaintiff proceeds pro se with an amended civil rights
complaint filed pursuant to 42 U.S.C. § 1983,
challenging conditions of his prior confinement at Deuel
Vocational Institution (DVI); a request for leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915; and a
motion for appointment of counsel.
reasons that follow, plaintiff's request to proceed in
forma pauperis is granted; plaintiff's request for
appointment of counsel is denied without prejudice; and the
undersigned recommends that this action be dismissed without
leave to amend.
In Forma Pauperis Application
has submitted his affidavit and prison trust account
statement that make the showing required by 28 U.S.C. §
1915(a). Accordingly, plaintiff's requests to proceed in
forma pauperis, ECF Nos. 2 & 6, will be granted.
must nevertheless pay the statutory filing fee of $350.00 for
this action. See 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.
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 First Amended Complaint
commenced this action by filing his initial complaint on
November 22, 2017. ECF No. 1. On January 19, 2018, prior to
the court's screening or service of process on any
defendant, plaintiff filed his First Amended Complaint (FAC),
which is now the operative complaint. ECF No. ...