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Smith v. California Department of Corrections and Rehabilitations

United States District Court, E.D. California

July 10, 2019

MICHAEL LENOIR SMITH, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATIONS, et al., Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner at California State Prison Corcoran (CSP-COR), [1] 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.

         II. In Forma Pauperis Application

         Plaintiff 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.

         Plaintiff 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).

         III. Screening of Plaintiff's Complaint

         A. Legal Standards for Screening Prisoner Civil Rights Complaints

         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).

         Rule 8 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, the-defendant-unlawfully-harmed-me accusation.” 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 misconduct alleged.

         “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. Plaintiff's Allegations

         The 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.

         Plaintiff 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.

         It 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[2] inmate precautions section due to it not being factual.

         At 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.[3] 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.)

         In the 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 ...


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