(PC) Owens v. Calloway ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH OWENS, No. 2: 20-cv-0860 KJN P 12 Plaintiff, 13 v. ORDER 14 K. CALLOWAY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 16 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 17 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 23 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 24 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 25 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 27 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 28 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 1 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 2 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 3 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 4 Named as defendants are K. Calloway, S. Achterberg and C. Elston. Plaintiff alleges that 5 defendants are employed at Mule Creek State Prison (“MCSP”). Plaintiff’s complaint contains 6 two claims. 7 In claim one, plaintiff allege that on July 16, 2019, Correctional Officers Jenkins and 8 Bartkiewicz approached plaintiff and his cellmate, inmate Frazier, to conduct a routine cell 9 search. Prior to this search, Officer Jenkins found a bottle on inmate Frazier which was tested 10 and came back positive for heroin. Officer Bartkiewicz told inmate Frazier to come with him. 11 Defendant Calloway then conducted an unclothed body search of plaintiff. The search did 12 not reveal anything. Defendant Calloway then ordered plaintiff to take a urinalysis based on a 13 controlled substance having been found in his cell. Plaintiff refused to provide a urine sample. 14 On July 27, 2019, plaintiff was issued a rules violation report for refusing to provide the urine 15 sample. The rules violation report stated that the controlled substance was found inside plaintiff’s 16 cell. 17 Defendant Elston conducted the disciplinary hearing. Plaintiff told defendant Elston that 18 defendant Calloway violated his right to due process when he prepared a rules violation report 19 containing false information, i.e., that the controlled substance was found in plaintiff’s cell when 20 it was actually found on inmate Frazier. 21 Plaintiff alleges that he called defendant Calloway as a witness at the hearing. Plaintiff 22 asked defendant Calloway where the controlled substance was located, but defendant Calloway 23 would not answer. Plaintiff alleges that defendant Calloway had to stick to the false story he had 24 written in the rules violation report, i.e., the controlled substance was found in plaintiff’s cell. 25 Plaintiff alleges that Correctional Officers Jenkins and Bartkiewicz “both stated,” 26 apparently at the disciplinary hearing, that the controlled substance was found on another inmate. 27 Defendant Elston found plaintiff guilty of refusing to provide a urine sample. 28 //// wOASe 2 OMUE IN REMUS re AY Tt 1 In claim two, plaintiff alleges that beginning in May 2019, defendant Achterberg harassed 2 | plaintiff and targeted plaintiff with false write-ups, i.e., prison disciplinary reports, so that 3 | plaintiff would have enough points to be sent to A yard with defendant Achterberg. 4 The due process violations alleged against defendants Calloway and Elston in claim one 5 | based on the rules violation report charging plaintiff with refusing to take a urine test are 6 | unrelated to the harassment and false rules violation reports alleged against defendant Achterberg 7 | inclaim two. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[M]Jultiple claims against 8 | asingle party are fine, but...[u]nrelated claims against different defendants belong in different 9 | suits....”). Plaintiff may not proceed with these unrelated claims in the instant action. 10 | Accordingly, plaintiff shall inform the court within thirty days which claim he would like to 11 || proceed on. The undersigned will then recommend that the claim plaintiff chooses not to proceed 12 | on be dismissed without prejudice. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff's request for leave to proceed in forma pauperis is granted. 15 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 16 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 17 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 18 || Director of the California Department of Corrections and Rehabilitation filed concurrently 19 | herewith. 20 3. Within thirty days of the date of this order, plaintiff shall inform the court whether he 21 || wishes to proceed on claim one or claim two. 22 | Dated: May 1, 2020 3 Aectl Aharon 24 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 25 Ow860.14 26 27 28