United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner incarcerated at High Desert State Prison
(HDSP), under the authority of the California Department of
Corrections and Rehabilitation (CDCR). Plaintiff initiated
this action with a letter informing the court that his life
was in danger, due to an alleged conspiracy among kitchen and
correctional staff to poison plaintiff's food, leading
plaintiff to engage in a hunger strike that had not been
properly reported. See ECF No. 1. The court
immediately directed the Office of the California Attorney
General (AG) to investigate plaintiff's allegations.
See ECF No. 3. As set forth in the AG's response
filed six days later, the AG immediately contacted the HDSP
Litigation Coordinator who investigated plaintiff's
allegations and concluded, based on substantial information,
that plaintiff's life was not in danger. See ECF
the court informed plaintiff that he could proceed in this
action only if he filed a complaint stating cognizable
claims, and paid the filing fee or obtained in forma pauperis
status. See ECF No. 6; see also ECF No. 10.
Plaintiff timely filed a proposed complaint, ECF No. 14 and a
motion to proceed in forma pauperis, ECF No. 15, together
with numerous additional requests for the court's
immediate intervention, see ECF Nos. 12-3, 16-9.
of plaintiff's filings demonstrates that he neither
exhausted nor commenced the prison administrative grievance
process before filing his complaint, requiring the dismissal
of this action and the denial of plaintiff's requests for
In Forma Pauperis Application
application to proceed in forma pauperis and prison trust
account statement make the showing required by 28 U.S.C.
§ 1915(a). Accordingly, plaintiff's request to
proceed in forma pauperis, ECF No. 15, 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 of Plaintiff's
Screening Prisoner Complaints Under 28 U.S.C. §
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).
document filed pro se is ‘to be liberally construed,
' and ‘a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers. '” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (internal quotation
marks omitted)). See also Fed.R.Civ.P. 8(e)
(“Pleadings shall be so construed as to do
justice.”). Additionally, 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).
PLRA Requirement of Administrative Exhaustion
Prison Litigation Reform Act of 1995 (PLRA) mandates that an
inmate exhaust ‘such administrative remedies as are
available' before bringing suit to challenge prison
conditions.” Ross v. Blake, 136 S.Ct. 1850,
1854-55 (June 6, 2016) (quoting 42 U.S.C. § 1997e(a)).
“There is no question that exhaustion is mandatory
under the PLRA[.]” Jones v. Bock, 549 U.S.
199, 211 (2007) (citation omitted) (cited with approval in
Ross, 136 S.Ct. at 1856). Although a plaintiff may
add newly exhausted claims in an amended complaint, he may
not allege unexhausted claims in an original complaint if
administrative remedies remain available. Rhodes v.
Robinson, 621 F.3d 1002, 1007 (9th Cir. ...