United States District Court, E.D. California
ORDER FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES DISTRICT JUDGE
a state prisoner proceeding pro se, 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. (ECF
Nos. 1, 5). Plaintiff has also filed a request that the
United States Marshal's Office serve the defendants
(see ECF No. 4) as well as a “request for
funds to facilitate discovery” (ECF No. 7).
reasons stated below, the court will grant plaintiff's
request to proceed in forma pauperis. However,
plaintiff's requests for service and for funds will be
denied. In addition, the undersigned shall recommend that
plaintiff's complaint be dismissed for failure to state a
claim upon which relief may be granted and that the dismissal
be declared a strike within the meaning of 28 U.S.C. §
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). (See ECF No. 5).
Accordingly, the request to proceed in forma pauperis will be
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
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison 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).
forma pauperis statute provides, “Notwithstanding any
filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court
determines that . . . the action or appeal is frivolous or
malicious; fails to state a claim upon which relief may be
granted; or seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1983 “provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
state a claim under Section 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda
Cty., 811 F.2d 1243, 1245 (9th Cir. 1987).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[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) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. Facial
plausibility demands more than the mere possibility that a
defendant committed misconduct and, while factual allegations
are accepted as true, legal conclusions are not. Id.