United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, 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.
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF Nos. 6, 9. Accordingly, the
request to proceed in forma pauperis will be 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
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison 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).
Statutory Screening of Prisoner Complaints
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 “frivolous,
malicious, or 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).
“is [legally] frivolous where 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] judge may dismiss . . . claims which are
‘based on indisputably meritless legal theories' or
whose ‘factual contentions are clearly
baseless.'” Jackson v. Arizona, 885 F.2d
639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S.
at 327), superseded by statute on other grounds as stated
in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
basis. Id.; Franklin, 745 F.2d at 1227-28
Rule of Civil Procedure 8(a)(2) 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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “Failure to state a claim under § 1915A
incorporates the familiar standard applied in the context of
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). 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.”
Twombly, 550 U.S. at 555 (citations omitted).
“[T]he pleading must contain something more . . . than
. . . a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
Id. (alteration in original) (quoting 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure' 1216 (3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. 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.” Id. (citing
Twombly, 550 U.S. at 556). In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hosp. Bldg. Co.
v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as
well as construe the pleading in the light most favorable to
the plaintiff and resolve all doubts in the plaintiff's
favor, Jenkins v. McKeithen, 395 U.S. 411, 421
(1969) (citations omitted).
before the court is plaintiff's first amended complaint.
It alleges that defendant Scott Kernan, Secretary for the
California Department of Corrections and Rehabilitation
(CDCR), and Doe defendants A to Z, violated plaintiff's
Fourth, Fifth, Sixth, Eight, and Fourteenth Amendment rights.
ECF No. 5 at 2. Specifically, plaintiff alleges that prison
officials, under the supervision of defendants, intercepted
all his incoming and outgoing mail, isolated him inside of
prison, denied him access to post-judgment courts, and
sabotaged his efforts to appeal his conviction. Id.
However, the bulk of plaintiff's factual allegations are
unrelated to defendant Kernan or any other correctional
alleges that between 1984 and 1991, a group of both
government and private attorneys carried out a criminal
scheme against him. Id. at 2-7. Attorneys included
Los Angeles Deputy District Attorneys Elliot Alhadeff and
David D'ver, private divorce attorneys Jacqueline Fox and
Susan Bouguise, and their “support
groups.” Id. Plaintiff refers to these
parties collectively as the Alhadef/Fox group (id.,
at 2, ¶ 7), and although they are not named defendants
in the complaint, they will be treated as such for the
purpose of screening since the bulk of the complaint is made
up of allegations against them.
asserts that between 1984 and 1991, the Alhadef/Fox group
manipulated the outcome of his family court case in favor of
his ex-wife; harassed him until he was forced to leave the
state, causing him to lose his property; accused him of
molesting his then three-year-old son; allegedly wiretapped
his offices, telephones, and vehicles; had him incarcerated
on what he asserts was a bogus warrant; and had him arrested
and charged with murder and planted attorney Bruce C. Hill as
counsel in order to sabotage his case. Id. at 2-6,
¶¶ 6-27. Plaintiff was ultimately convicted of the
murder in 1991 in Los Angeles County Superior Court No.
LA000079. Id. at 5-6, ¶¶ 22, 29. After his
conviction, plaintiff was placed in the custody of the CDCR.
Id. at 6, ¶ 29. At this point, Alhadeff/Fox
instructed the CDCR to intercept his mail and prevent him
from earning money, so he would be unable to hire an
appellate attorney, and sabotaged his direct appeal.
Id., ¶¶ 29-30.