United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. Plaintiff 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. This proceeding was referred to this court by
Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis is 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
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).
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. §
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). The court may, therefore, dismiss a
claim as frivolous when it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) 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)). 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.” Id. at 555.
However, “[s]pecific facts are not necessary; the
statement [of facts] need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Erickson v. Pardus, 551 U.S.
89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at
555, citations and internal quotations marks omitted). In
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
alleges that while he was housed at High Desert State Prison
(“HDSP”) in August of 2017, building officers
received a note threatening that plaintiff was the target of
an assault due to his commitment offense. Plaintiff was
interviewed by a lieutenant who left plaintiff in the same
cell. Thirty days later, plaintiff was moved to C-5 based on
renewed threats. Plaintiff was moved two more times. While
housed in C-4-250, on May 27, 2018, the prisoners in
plaintiff's building were released to yard, where
plaintiff was attacked by three prisoners. Plaintiff alleges
that the tower officer and other yard officers saw the
attack, but none of them activated their emergency alarms.
Plaintiff alleges he was beaten, stomped and kicked for three
to five minutes before another prisoner intervened. Plaintiff
then limped to the infirmary alone while the officers
watched. Plaintiff suffered a broken left leg and numerous
cuts and bruises. Plaintiff seeks money damages for
defendants' failure to protect plaintiff. Plaintiff names
Spearman, the HDSP Warden, and Does 1 to 5 (tower officer,
yard officers, dorm officers, and the lieutenant who
interviewed plaintiff regarding the threatening note) as
defendants. (ECF No. 1 at 2.)
plaintiff includes no charging allegation as to Warden
Spearman. The Civil Rights Act under which this action was
filed provides as follows:
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an
actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by plaintiff. See Monell v. Department of Social
Servs., 436 U.S. 658 (1978) (“Congress did not
intend § 1983 liability to attach where . . . causation
[is] absent.”); Rizzo v. Goode, 423 U.S. 362
(1976) (no affirmative link between the incidents of police
misconduct and the adoption of any plan or policy
demonstrating their authorization or approval of such
misconduct). “A person ‘subjects' another to
the deprivation of a constitutional right, within the meaning
of § 1983, if he does an affirmative act, participates
in another's ...