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Noble v. Seibel

United States District Court, E.D. California

March 29, 2018

DANIEL JOSEPH NOBLE, Plaintiff,
v.
KIMBERLY SEIBEL, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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.

         For the 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.

         II. In Forma Pauperis Application

         Plaintiff 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.

         Plaintiff 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. § 1915(b)(2).

         III. Legal Standards for Screening Prisoner Civil Rights Complaint

         The 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).

         Rule 8 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         A pro 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. 1987).

         IV. Screening of Plaintiff's First Amended Complaint

         A. Plaintiff's Allegations

         Plaintiff 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. ...


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