United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and seeking relief
pursuant to 42 U.S.C. § 1983. On March 4, 2019, the
court screened plaintiff's complaint as the court is
required to do under 28 U.S.C. § 1915A(a).
Plaintiff's complaint was dismissed with leave to amend.
Plaintiff has not filed an amended complaint.
plaintiff already knows, 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).
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 where 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); Franklin, 745 F.2d at 1227.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. 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.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S.
89, 93-94 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
amended complaint, plaintiff asserts, as he did in his
original complaint, that his not being permitted to purchase
and possess a typewriter with memory capabilities violates
his right to due process and equal protection under the
Fourteenth Amendment. But as plaintiff was informed in the
court's first screening order, the right to due process
is not compromised simply by denying a prisoner the ability
to purchase and possess a typewriter with memory
capabilities, and plaintiff fails to point to any additional
facts suggesting a violation of the Due Process Clause has
occurred. The Equal Protection Clause generally protects
against unequal treatment as a result of intentional or
purposeful discrimination. Freeman v. Arpaio, 125
F.3d 732, 737 (9th Cir. 1997). Plaintiff fails to show he is
being discriminated against with unequal treatment.
case, plaintiff admits he never pursued administrative
remedies with respect to his desire to possess a typewriter
with memory capability. Section 1997(e)(a) of Title 42 of the
United States Code provides that “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, . . . until such administrative remedies as
are available are exhausted.” 42 U.S.C. §
1997(e)(a). In California “[any] inmate may appeal any
policy, decision, action, condition, or omission by the
[Department of Corrections and Rehabilitation] or its staff.
. .” Cal. Code Regs. tit. 15, § 3084.1(a).
Administrative procedures generally are exhausted with
respect to the California prisoner grievance process once the
third level of review is complete. The third level of review
constitutes the decision of the Secretary of the California
Department of Corrections and Rehabilitation. Cal. Code Regs.
tit. 15, § 3084.7. In Albino v. Baca, 747 F.3d
1162, 1169 (9th Cir. 2014) (en banc), the Ninth Circuit
described when dismissal of a complaint for failure to
exhaust administrative remedies is appropriate under Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure
to state a claim upon which relief can be granted.
Specifically, the court found that dismissal is only
appropriate when failure to exhaust is “clear from the
face of the complaint” and that “such cases will
be rare because a plaintiff is not required to say anything
about exhaustion in his complaint.” In this instance,
plaintiff's admission on the face of his complaint that
he never pursued administrative remedies mandates dismissal.
the court will recommend that plaintiff's amended
complaint be dismissed and this case be closed. Considering
the instructions given to plaintiff upon the dismissal of his
original complaint, and the content of the amended complaint,
granting plaintiff leave to amend a second time appears
accordance with the above, IT IS HEREBY RECOMMENDED that:
Plaintiff's amended complaint be dismissed; and
case be closed.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
after being served with these findings and recommendations,
plaintiff may file written objections with the court. The
document should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Plaintiff is
advised that failure to file objections within the ...