United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner at California State Prison Corcoran
(CSP-COR),  under the authority of the California
Department of Corrections and Rehabilitation (CDCR).
Plaintiff proceeds pro se with a civil rights complaint filed
pursuant to 42 U.S.C. § 1983, and a request for leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The complaint names as defendants CDCR and thirty-three
individual defendants at four institutions. Plaintiff also
seeks a temporary restraining order (TRO). This action is
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302(c). For the reasons that
follow, plaintiff's request to proceed in forma pauperis
is granted; his TRO request is denied; and the complaint is
dismissed with leave to amend.
In Forma Pauperis Application
has submitted an affidavit and prison trust account statement
that make the showing required by 28 U.S.C. § 1915(a).
See ECF No. 2; see also ECF No. 6.
Accordingly, plaintiff's request to proceed in forma
pauperis will be granted.
must still 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 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).
Screening of Plaintiff's Complaint
Legal Standards for Screening Prisoner Civil Rights
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).
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)).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly at 555). To survive dismissal for failure to
state a claim, “a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.'”
Iqbal at 678 (quoting Twombly 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
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).
complaint names CDCR as a defendant in this action together
with thirty-three individual defendant correctional officers
at four different correctional institutions. See ECF
No. 1. Plaintiff has also separately filed numerous
additional documents in support of his complaint.
See ECF Nos. 10, 12, 14. The complaint and its
numerous supporting documents recount events spanning the
period of 2002 to the present.
alleges that he learned, in 2015, that his CDCR records
perpetuated a false statement from his Sacramento County
records that plaintiff had been convicted in 2002 of
attempted murder of a peace officer, a charge for which
plaintiff was acquitted. Plaintiff contends that he had long
suspected the perpetuation of this falsehood due to the
ongoing retaliatory conduct against him by numerous
correctional officials, including the filing of numerous
Rules Violation Reports (RVRs), prolonged stays in
Administrative Segregation (Ad Seg), and attempts on
plaintiff's life. Plaintiff also contends that at the
December 2015 hearing on his motion for resentencing under
Proposition 36, the district attorney argued that plaintiff
really did intend to murder a peace officer in 2000 despite
his acquittal in 2002. Plaintiff is currently serving a
sentence of 25-years-to-life for violation of California
Health and Safety Code § 11352(a) (transportation of
controlled substance), a non-violent offense. ECF No. 1 at 6.
appears that in August 2017, plaintiff succeeded in having
the disputed conviction information removed from his CDCR
file. Plaintiff states that on August 14, 2017, his Appeal
Log No. CMF-M-17-01627 was granted on Second Level Review by
Warden Fox, who ruled in pertinent part, ECF No. 1 at 19:
The Appeal Review was able to identify the appellant was not
convicted of the charge of assault on Sac County Deputy and
was able to delete the statement of (“Assault on a Sac
County Deputy (attempted to throw Deputy off of tier)”)
in the SOMS inmate precautions section due to it not
plaintiff's request, the court takes judicial notice of
another of his many federal cases, Smith v. Albee,
No. 2:15-cv-1598 JAM KJN P. Filed in 2015, that case now
proceeds with a Second Amended Complaint on plaintiff's
due process claims against the Sacramento County
Sheriff's Department and Sergeant Gregory (previously
misidentified as Sergeant Alexander) based on their alleged
failure to correct internal records to reflect that plaintiff
was acquitted of the attempted murder charge. Plaintiff
alleges in that case that he discovered the problem in 2015
when he was out-to-court at the Sacramento County Main Jail
and realized that the Sheriff's Department's
electronic files and a locator card specific to plaintiff
stated that he had attempted to murder Deputy Albee.
Plaintiff's other claims, including against Albee, have
been dismissed because precluded by the statute of
limitations. (See e.g., id. at ECF No. 26.)
instant case, plaintiff generally alleges the denial of his
rights to be free from retaliation and cruel and unusual
punishment under the First and Eighth Amendments, and the
denial of his due process rights under the Fourteenth
Amendment. Plaintiff generally seeks damages, preliminary and
permanent injunctive relief, and the “audit of all CDCR
classification files, Ad Seg ...