United States District Court, E.D. California
ERNEST L. COX, Plaintiff,
SCOTT KERNAN, et al., Defendants.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state inmate proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff claims
his rights were violated in connection with a 2014 rules
violation for allegedly overfamiliar contact with a
correctional officer. Presently before the court is
plaintiff's motion to proceed in forma pauperis (ECF No.
4) and his complaint for screening (ECF No. 1). For the
reasons set forth below the court will grant the motion to
proceed in forma pauperis and dismiss the complaint with
leave to amend.
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). (ECF No. 4.) 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 an officer or
employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).
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 Franklin, 745 F.2d at 1227. Rule 8(a)(2) 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)).
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.” Bell
Atlantic, 550 U.S. at 555. In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hospital Bldg.
Co. v. Rex Hospital 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
Civil Rights Act under which this action was filed provides
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983. Here, the defendants must act under
color of federal law. Bivens, 403 U.S. at 389. The
statute requires that there be an actual connection or link
between the actions of the defendants and the deprivation
alleged to have been suffered by plaintiff. See Monell v.
Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo
v. Goode, 423 U.S. 362 (1976). “A person
‘subjects' another to the deprivation of a
constitutional right, within the meaning of § 1983, if
he does an affirmative act, participates in another's
affirmative acts or omits to perform an act which he is
legally required to do that causes the deprivation of which
complaint is made.” Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978).
supervisory personnel are generally not liable under §
1983 for the actions of their employees under a theory of
respondeat superior and, therefore, when a named defendant
holds a supervisorial position, the causal link between him
and the claimed constitutional violation must be specifically
alleged. See Fayle v. Stapley, 607 F.2d 858, 862
(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438,
441 (9th Cir. 1978). Vague and conclusory allegations
concerning the involvement of official personnel in civil
rights violations are not sufficient. See Ivey v. Board
of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Allegations in the Complaint
claims the events giving rise to his claims occurred while he
was incarcerated at Mule Creek State Prison
(“MCSP”). (ECF No. 1 at 3.) Plaintiff names as
defendants in this action: (1) Scott Kernan, former Secretary
of the California Department of corrections and
Rehabilitation (“CDCR”); (2) Joe Lizarraga,
Warden at MCSP; (3) L. Olivas, Correctional Captain; and (4)
R. Grimes, Correctional Officer. (ECF No. 1 at 3.)
claims that he would frequently talk to correctional officer
Grimes, who supervised him while he was working as a porter,
or janitor. (ECF No. 1 at 4-5.) He states that he and Grimes
would typically speak while she was seated at the command
station. He further states that they discussed her personal
life and she read plaintiff's writings. Plaintiff states
that one day while they were talking, lieutenant Allen
approached the command station and observed their
conversation. (ECF No. 1 at 6.) They stopped talking and
Allen stated, “It's too late, I saw too much
plaintiff approached Grimes at the command station the
following day, she told him she had been warned about talking
to inmates at the command station. (ECF No. 1 at 7.) Grimes
also told plaintiff that “writing is good
therapy.” (Id.) Plaintiff claims he took this
statement to mean that Grimes wanted plaintiff to reduce
their conversations to writing.
April 9, 2014, plaintiff spoke to Grimes about rumors spread
by other inmates relating to Grimes. (Id.)
Specifically, he told her an inmate named Angel stated Grimes
was his girl, that she was seen attempting to enter the staff
rest room with Angel, as well as other information. Plaintiff
wrote down the information and told Grimes “that the
letter was not a good letter but that she will want to know
the information.” (Id. ...