United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and seeking relief
pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
requests leave to proceed in forma pauperis. Since plaintiff
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a), his request will be granted.
Plaintiff is required to pay the statutory filing fee of
$350.00 for this action. 28 U.S.C. §§ 1914(a),
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.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[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).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. 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.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S.
89, 93-94 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
Allegations in the Complaint
original complaint was filed on April 25, 2019. ECF No. 1.
However, before the court could screen this complaint,
plaintiff filed a motion to amend along with a proposed first
amended complaint. ECF Nos. 10-11. The court will grant
plaintiff's motion to amend and proceed to screen the
first amended complaint in accordance with 28 U.S.C. §
1915A. See also Fed. R. Civ. P. 15(a)(1) (amendments
alleges that, while an inmate at California State Prison in
Solano (“CSP-Solano”), his right to due process
was violated during an administrative disciplinary hearing at
which he lost 150 days of good time credit. ECF No. 11 at 5,
15-16. Plaintiff also alleges that his First Amendment right
of access to the courts has been denied because his
administrative grievances concerning this disciplinary
conviction were improperly screened out. ECF No. 11 at 10-15.
He names the warden of CSP-Solano as well as an appeals
coordinator at the prison as defendants in this action. As a
remedy for these asserted violations, plaintiff requests that
his disciplinary appeal be reinstated and that the
disciplinary conviction itself be removed from his record
along with the loss of his good time credits.
state prisoner challenges the legality of his custody and the
relief he seeks is the determination of his entitlement to an
earlier or immediate release, his sole federal remedy is a
writ of habeas corpus which plaintiff would seek under 28
U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S.
475, 500 (1973). Also, to the extent plaintiff seeks damages,
plaintiff is informed he cannot proceed on a §1983 claim
for damages if the claim implies the invalidity of his
conviction or sentence. Heck v. Humphrey, 512 U.S.
477, 487 (1994); see also Foster v. Kassulke, 898
F.2d 1144, 1148 (6th Cir. 1990) (emphasizing that § 1983
should not be “used to make an end run around habeas
corpus procedures”). The rule in Heck applies
to suits that would necessarily imply the invalidity of a
disciplinary hearing that results in a prisoner's
sentence being extended due to the loss of good time credits.
Edwards v. Balisok, 520 U.S. 641, 648 (1997). The
Heck rule applies to bar suits that both challenge
the erroneous results in disciplinary hearings, and also to
bar suits that challenge the procedures used in prison
disciplinary hearings. Id. at 646.
do have a right under the First Amendment to file grievances
complaining about prison officials' misconduct.
Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.
2005). However, that does not require any specific grievance
procedure to be adopted by prison officials. See
Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.