United States District Court, E.D. California
DEBORAH BARNES 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).
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). Accordingly, the request to
proceed in forma pauperis will be 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
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).
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 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.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log
Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
In reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738,
740 (1976), construe the pleading in the light most favorable
to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
claims, which arose while he was incarcerated at High Desert
State Prison (“HDSP”), are asserted against the
following individuals: Scott Kernan, Secretary of the
California Department of Corrections and Rehabilitation
(“CDCR”); M.E. Spearman, HDSP Warden; T. Foss,
HDSP Chief Deputy Warden; R. Robertson, HDSP Associate
Warden; D. Furtado, CCII; K. Holmes, Sergeant; S. Wagner,
Correctional Officer (“CO”); T. Young, CO; A.
Brown, CO; J. Spinney, Lieutenant; M. Brown, Lieutenant; and
A. Lynn, CCI.
allegations may be fairly summarized as follows:
First Disciplinary Action
March 10, 2016, CO Young filed a false charge against
plaintiff for disobeying orders into the Strategic Offender
Management System (“SOMS”) in retaliation for a
complaint of harassment plaintiff made against him. CCII
Furtado improperly classified CO Young's false report as
a CDCR Form 115 (a Rules Violation Report
[“RVR”]). On March 21, 2016, CO A. Brown
purported to give plaintiff a copy of the RVR but instead
provided only a copy of the SOMS Disciplinary Module
printout. When plaintiff complained that this was not a
proper RVR, CO A. Brown responded, “that's how
we're doing it now.”
April 3, 2016, a disciplinary hearing was held by Lt. Spinney
on the charges included in the SOMS Disciplinary Module
printout. During the hearing, plaintiff complained that the
charges were false and that he never received a proper RVR
form as required by institutional regulations. Lt. Spinney,
like Lt. Brown earlier, told plaintiff that these were the
forms they were using now and that a “Notice of Change
to Regulation [‘NCR']” had been circulated to
the inmate population regarding the change. Plaintiff denied
having received the NCR, in violation of the Administrative
Procedures Act (“APA”). In fact, plaintiff
alleges that the NCR was not even issued until June 2016,
after the disciplinary hearing. In addition, the
SOMS Disciplinary Module printout failed to comply with
specific procedural requirements, including listing
plaintiff's TABE score or his requested witnesses,
rendering the ...