United States District Court, E.D. California
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 No. 2. 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at 327), superseded by statute on other grounds as stated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).
complaint names licensed vocational nurse Thomas and
correctional officers Oldham, Lea, Richards, Rana, Moreira,
Badill, and DeSouza as defendants. ECF No. 1 at 3. Plaintiff
alleges that on August 8, 2015, he submitted a grievance
against Thomas for giving him a medication that had not been
prescribed to him. Id. at 4. When Oldham mentioned
to Thomas that the medicine being provided was not for
plaintiff, Thomas replied that “it's okay.”
Id. Two days after submitting the appeal, plaintiff
“had a reaction, due to [his] Fibroses condition (LUNG
two months later, plaintiff filled out a medical refill
request for his medication (Atrovent) in front of Thomas.
Id. at 5. Two days later, plaintiff told Oldham to
ask Thomas about his inhaler, and that was when he became
aware of a medical document with Thomas' signature on it
that had a line drawn through Atrovent and the medication
Dulera written in. Id. He alleges that Thomas
intentionally withheld his prescribed medication, attempted
to give him a non-prescribed medication, and then attempted
to cover up the act. Id.
respect to the other defendants, plaintiff alleges that on
November 16, 2015, Richards admitted to “turning the
hot water up in cell 130, ” which caused plaintiff and
some of his property to get wet. Id. at 6. Rana
allegedly accessed plaintiff's C-File with the intent to
cause harm to plaintiff by revealing the contents.
Id. at 7. Lea allegedly “instructed
co-defendant Badill on how to have [plaintiff] touch him
an[d] get a staff assault.” Id. at 6.
also alleges that each defendant subjected him to a
“prolong[ed] and constant pattern of harassment and
retaliatory conduct for the protected conduct of redress
within CDCR administrative appeal process at California
Medical Facility on 8-8-2015” and entered into an
agreement on November 16, 2015, to not help plaintiff even if
he had a problem breathing. Id. at 5-8. He
separately alleges that each defendant, other than Thomas,
subjected him to a pattern of harassment and retaliatory
conduct, as well as concealing evidence and presenting false
testimony, and interfering with plaintiff's exercise of
his constitutional rights. Id. at 5-8. Defendants
also “willingly contributed to the destructive conduct
by preventing the protected conduct of redress within the
Administrative Appeal process to cease the misconduct,
” and violated their duties to protect plaintiff from
harm and to report the violations, misconduct, and