United States District Court, E.D. California
WALTER L. COLE, Plaintiff,
M. SAWAYA, et al., Defendants.
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a state prisoner at California State Prison Sacramento
(CSP-SAC), 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, and a request to proceed in forma
pauperis. This 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 following
reasons, the court grants plaintiff's request to proceed
in forma pauperis but finds that the complaint, as framed,
does not state a cognizable claim against any of the named
defendants. Accordingly, the complaint will not be served.
Instead, plaintiff will be granted leave to file a First
Amended Complaint within thirty days.
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. 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).
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).
Screening of Plaintiff's Complaint
makes several allegations against Correctional Officer M.
Sawaya. Plaintiff alleges that on January 27, 2015, he was
released from his cell to report to a medical ducat. As
plaintiff was leaving the building, Sawaya stopped him to
conduct a search. Sawaya removed plaintiff's wallet from
his back pocket. Plaintiff states that he keeps his phone
book and legal documents in his wallet. While Sawaya was
searching plaintiff's property, plaintiff began talking
with Correctional Officer Carling about obtaining a lower
bunk. After about ten minutes, plaintiff asked Sawaya why he
was reading plaintiff's phone book. Sawaya told plaintiff
not to worry and to keep talking with Carling. Plaintiff
stated under his breath that “it's too early for
all of this fucking shit.” ECF No. 1 at 4 (minor
allegedly went into a “rampage, ” told plaintiff
that he couldn't say “fuck me, ” and ordered
plaintiff to turn around to be cuffed. Plaintiff was wearing
medical wrist braces to treat his carpal tunnel syndrome and
ganglion cysts. Sawaya told plaintiff to “take that
shit off” but plaintiff explained that the braces were
medically required. Sawaya repeatedly “tried to
force” the handcuffs around plaintiff's braces,
causing him “extreme pain” and apparently
breaking plaintiff's watch. Id. at 4, 6. When
plaintiff offered to “just walk to the sallyport cages,
” Sawaya told him to start walking. Once there, Sawaya
directed plaintiff to strip for an unclothed body search,
placed plaintiff's clothing on top of a locker and left
plaintiff standing naked inside a cold cage while he went to
talk with another officer. Plaintiff was humiliated and
freezing and had to ask another officer for his ...