United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner at California Men's Colony, 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,
challenging conditions of his prior confinement at the
California Medical Facility (CMF), and a request to proceed
in forma pauperis.
action is referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302(c). For the reasons set forth below, the
undersigned grants plaintiff's application to proceed in
forma pauperis and accords plaintiff the choice of proceeding
on his original complaint against defendant Li only (and
dismissing his putative claims against defendants Yee,
Naidoo, Osman and Austin), OR filing a First Amended
Complaint that attempts to add cognizable claims against the
In Forma Pauperis Application
has submitted an affidavit and his prison trust account
statement that make the showing required by 28 U.S.C. §
1915(a). See ECF No. 2 (ECF No. 9 will be denied as
duplicative). 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 with periodic deductions from his prison trust
account. 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
misconduct alleged. The plausibility standard is not akin to
a ‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly at
556). “Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to
relief.”'” Id. (quoting
Twombly at 557).
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).
court has reviewed plaintiff's complaint, ECF No. 1, and
numerous additional filings, which are subtantially