United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a jail inmate, proceeding without counsel. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and has requested
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. This proceeding was referred to this court
pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis is granted.
is required to pay the statutory filing fee of $350.00 for
this action. 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 jail 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).
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. §
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 when 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 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
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.” Id. However, “[s]pecific facts
are not necessary; the statement [of facts] need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atlantic Corp., 550 U.S. at 555)
(citations and internal quotations marks omitted). In
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
id., and construe the pleading in the light most
favorable to the plaintiff. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), overruled on other grounds,
Davis v. Scherer, 468 U.S. 183 (1984).
alleges his Fourteenth Amendment right to due process was
violated by defendant Detective Spence's alleged
defamation. Specifically, plaintiff alleges that in reports
and felony warrant requests, defendant Detective Spence used
false accusations and claimed that plaintiff is a registered
sex offender and had convictions plaintiff has not sustained.
(ECF No. 1 at 3.) Plaintiff claims he was jailed and lost
everything he owns. Plaintiff seeks money damages.
1983 “is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights
elsewhere conferred.” Graham v. Connor, 490
U.S. 386, 393-94 (1989) (internal citations omitted);
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991). “In § 1983 cases, it is the constitutional
right itself that forms the basis of the claim.”
Crater v. Galaza, 508 F.3d 1261, 1269 (9th Cir.
claims of defamation do not rise to the level of a federal
constitutional violation. Allegations of harassment,
embarrassment, and defamation are not cognizable under
section 1983. Rutledge v. Arizona Bd. of Regents,
660 F.2d 1345, 1353 (9th Cir. 1981), aff'd sub nom.
Kush v. Rutledge, 460 U.S. 719 (1983); see also
Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1982)
(allegations of harassment with regards to medical problems
not cognizable); Ellingburg v. Lucas, 518 F.2d 1196,
1197 (8th Cir. 1975) (Arkansas state prisoner does not have
cause of action under § 1983 for being called obscene
name by prison employee); Batton v. North Carolina,
501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by
prison officials does not state claim under § 1983).
Because plaintiff cannot state a federal claim based on
alleged defamation, his complaint is dismissed without leave
plaintiff has filed two motions regarding filing fees and
March 29, 2018, plaintiff filed a motion to waive the filing
fees in this case so that plaintiff can use his pro se funds
for discovery. (ECF No. 9.) However, plaintiff is advised
that under 28 U.S.C. § 1915(b)(1), pro se litigants are
now required to pay the court's filings fees. The
undersigned has no authority to waive filings fees in this
action. Plaintiff's motion is denied.
April 9, 2018, plaintiff filed a motion requesting that he be
provided $500.00 per month in “pro se money to
facilitate discovery and other advances” in this case.
(ECF No. 10.) Plaintiff is advised that the court has no fund
of “pro se money” to assist ...