United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE 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.
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF No. 6. 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).
Statutory Screening of Prisoner Complaints
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 “frivolous,
malicious, or 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).
“is [legally] frivolous where 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).
“[A] judge may dismiss . . . claims which are
‘based on indisputably meritless legal theories' or
whose ‘factual contentions are clearly
baseless.'” Jackson v. Arizona, 885 F.2d
639, 640 (9th Cir. 1989) (Neitzke, 490 U.S. at 327),
superseded by statute on other grounds as stated in Lopez
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
Franklin, 745 F.2d at 1227-28 (citations omitted).
Rule of Civil Procedure 8(a)(2) 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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “Failure to state a claim under § 1915A
incorporates the familiar standard applied in the context of
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order
to survive dismissal for failure to state a claim, a
complaint must contain more than “a formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient “to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citations omitted).
“‘[T]he pleading must contain something more . .
. than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of
action.'” Id. (alteration in original)
(quoting 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1216 (3d ed.
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting 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.” Id. (citing
Twombly, 550 U.S. at 556). In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hosp. Bldg. Co.
v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976)
(citation omitted), as well as 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) (citations omitted).
complaint alleges that defendants Cross, Tran, Baker, Swett,
Smith, and Guerra violated plaintiff's Eighth Amendment
rights by failing to protect him from a life-threatening
assault by two other inmates. ECF No. 1 at 4-10. Plaintiff
alleges that the officers failed to protect him by not
preventing the attack and by not intervening to stop the
assault once it began. Id. at 11-13.
November 5, 2015, plaintiff was in the yard of Facility C at
CSP-SAC and was stabbed approximately twenty-five times by
two other inmates. Id. at 5. Plaintiff alleges that
defendants Cross, Tran, Baker, Swett, and Smith were assigned
to the yard at Facility C and were present when he was
attacked. Id. at 6-7. Defendant Guerra was assigned
to the gym observation tower overlooking the yard at the
time. Id. None of the defendants made any attempt to
intervene or stop the assault while it was happening, and no
response occurred until four minutes after the attack when it
was time for yard recall. Id. Plaintiff suffered
severe injuries because of the assault that required
extensive medical intervention. Id. at 5-6, 9-11.