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Davis v. Spearman

United States District Court, E.D. California

May 23, 2018

TIM DAVIS, Plaintiff,
v.
MARION SPEARMAN, Warden, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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 No. 5.

         Thereafter, 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.

         Review 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 court intervention.

         II. In Forma Pauperis Application

         Plaintiff's 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.

         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 of Plaintiff's Complaint

         A. Screening Prisoner Complaints Under 28 U.S.C. § 1915A

         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).

         “A 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).

         B. PLRA Requirement of Administrative Exhaustion

         “The 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. ...


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