{PC) Green v. Walker et al

Filing 6

ORDER signed by Circuit Judge N. Randy Smith on 12/15/09 ORDERING pltf's request to proceed in forma pauperis is GRANTED; the court will direct the Commissioner of the CDC to collect the appropriate fees from pltf's prison trust account; pltf's 1985 and 1964 claims are DISMISSED without prejudice; pltf's request to have criminal charges filed against dfts is DENIED. (cc: Sacramento Financial, Commissioner of CDC)(Carlos, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LONZELL GREEN, vs. JAMES WALKER, ET AL. No. 2:07-CV-02670-NRS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ORDER B efo re the Court is Plaintiff's Complaint, wherein he alleges a number of state prison officials denied him both federal and state rights under both 42 U.S.C. § 1985 and 18 U.S.C. § 1964. Plaintiff also filed a request to file criminal charges ag ain st the same state prison officials. We dismiss Plaintiff's complaint on all th ree grounds without prejudice. APPLICATION TO PROCEED IN FORMA PAUPERIS P lain tiff is a state prisoner proceeding pro se. Plaintiff filed his Complaint an d his request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on N o v em b er 8, 2007. Plaintiff then submitted a declaration that makes the showing req u ired by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma p au p eris is granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
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2 8 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $10.91 will be a ss es se d by this order. 28 U.S.C. § 1915(b)(1). Accordingly, the Court will direct th e appropriate agency to collect the initial partial filing fee from Plaintiff's trust acco u n t and forward it to the Clerk of the Court. Thereafter, Plaintiff will be o b lig ated for monthly payments of twenty percent of the preceding month's in co m e credited to Plaintiff's prison trust account. These payments will be fo rw ard ed by the appropriate agency to the Clerk of the Court each time the am o u n t in Plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U .S .C . § 1915(b)(2). 2 8 U.S.C. § 1915A U n d er 28 U.S.C. § 1915A(a), the Court must screen complaints brought by p riso n ers seeking relief against a governmental entity or an officer or employee of a governmental entity. The Court will dismiss a complaint, or portion thereof, if th e prisoner has raised claims that are, among other things, legally "frivolous" or "m alicio u s" or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1 9 1 5 A (b )(1 ) & (2). "[A] complaint . . . is frivolous where it lacks an arguable basis either in law o r in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). "[The Court's] inquiry is whether any of [Plaintiff's] claims has an arguable basis in law and fact." Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute on o th er grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130­31 (9th Cir. 2000). However, because we are only considering Plaintiff's pleadings at this stage of litig atio n , our order is necessarily informed by Rule 8 of the Federal Rules of Civil P ro ced u re. Rule 8(a)(2) requires "a short and plain statement of the claim," Fed. R . Civ. P. 8(a)(2), "enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In reviewing the Plaintiff's
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p lead in g s, we accept as true the allegations in his complaint and construe the p lead in g in the light most favorable to the Plaintiff. Jenkins v. McKeithen, 395 U .S . 411, 421 (1969). "Accordingly, a pleading must give fair notice [to d e f en d a n ts ] and state the elements of the claim plainly and succinctly." Jones v. C o m m u n ity Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotation m ark s and citation omitted). 42 U.S.C. § 1985 P lain tiff characterized his Complaint as a "1964/1985 Criminal Civil Rights C o m p la in t." In his Complaint, Plaintiff did allege that Defendants "[p]revented [P lain tiff] from the free exercise rights secured and guaranteed, [b]y the first, fo u rten th [sic] Amendment to the U.S. Constitution," and that Defendants had a "p a tte rn of showing Defiance [sic] towards the laws of the . . . United States." Because Plaintiff does not identify under which subsection of § 1985 he is p r o c e e d in g , we will construe Plaintiff's claim, given the aforementioned language, to proceed under the first clause of subsection 1985(3), which grants a right of actio n to a party injured by "two or more persons in any State or Territory [that] co n sp ire . . . for the purpose of depriving, either directly or indirectly, any person o r class of persons of the equal protection of the laws, or of equal privileges and im m u n ities under the law." 42 U.S.C. § 1985(3). In order to state a claim under § 1985(3), Plaintiff must allege: (1) racial or class-b ased invidious discrimination, Bretz v. Kelman, 773 F.2d 1026, 1028­30 ( 9 th Cir. 1985); and (2) specific facts to support the existence of a claimed co n sp iracy, Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929 (9th Cir. 2004). As to the first prong, Plaintiff has argued that he was discriminated against on the b asis of his mental and physical disabilities. Even assuming that this gives rise to a § 1985 claim, Plaintiff provided no statement or facts in support of his claim; he
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o ffers only bare assertions. As to the second prong, Plaintiff has alleged absolutely n o specific facts to support the existence of a claimed conspiracy. Again, he makes o n ly bare allegations that Defendants discriminated against him. Plaintiff has not asserted any violation of federal law in the body of his C o m p lain t other than to make bare allegations that his First and Fourteenth A m en d m en t rights were denied. Plaintiff has not offered any explanation about h o w or when Defendants supposedly violated these constitutional rights. In sum, P lain tiff's pleadings fail to give Defendants fair notice of the claims being brought ag ain st them. Therefore, even if we construe the Complaint in Plaintiff's favor and tak e all the pleaded facts as true, Plaintiff has failed to properly plead a violation of f ed e r al law. Accordingly, we have no choice but to dismiss Plaintiff's claim under 2 8 U.S.C. § 1915(d)(2)(B)(ii) for failure to "state a claim on which relief may be g r a n te d ." 18 U.S.C. § 1964 P lain tiff also alleges a claim pursuant to § 1964. Section 1964 allows d istrict courts various methods for preventing and restraining violations of § 1962. Section 1962, in turn, criminalizes various racketeering activities. Plaintiff's exact claim s are difficult to decipher. However, after a liberal reading of the Complaint, it appears that Plaintiff alleges Defendants routinely denied him opportunities to p articip ate in "credit earning" programs after he was determined to be disabled. At n o point did Plaintiff allege that Defendants were engaged in some manner of rack eteerin g scheme. As with Plaintiff's § 1985 action, we have no choice but to d is m is s Plaintiff's claim under 28 U.S.C. § 1915(d)(2)(B)(ii) for failure to "state a c la im on which relief may be granted." REQUEST TO FILE CRIMINAL CHARGES AGAINST DEFENDANTS P lain tiff has also requested that criminal charges be filed against Defendants
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an d that a federal investigation take place into the matter based on Defendants' alleg ed violations of Plaintiff's rights. However, Plaintiff only asserted violations o f state law in his Complaint; namely he asserts violations of: Cal. Admin. Code tit. 15, § 3043.5(b), (d)(1), (d)(2)(A), Cal. Admin. Code tit. 15 § 3044(b)(2),(b)(2)(E) (2009), Cal. Admin Code tit. 15 § 3177(c) (2009), Cal. A d m in . Code tit. 15 § 3085, Cal Admin. Code tit. 15 § 3045(a)(2), Cal. Admin. C o d e tit. 15 § 3353, Cal. Admin. Code tit. 15 § 3382, Cal. Admin. Code § 3075(a)(b ), Cal. Penal Code § 470, Cal. Penal Code § 206, Cal. Penal Code § 147, and Cal. P en al Code § 4019. Though he does assert claims based on 18 U.S.C. §§ 241 & 2 4 2 , those claim can exist only if there is some underlying federal allegation. Again, Plaintiff has not actually asserted any violation of federal law in the body of h is Complaint other than to make bare allegations that his First and Fourteenth A m e n d m e n t rights were denied. Thus, even if the Defendants have in fact violated P la in tif f's state law rights, this does not provide federal jurisdiction for a federal in v estig atio n to take place. Moreover, the U.S. Attorney's Office, not this Court, determines when and if to file federal criminal charges. If Plaintiff wishes to request that criminal c h a rg e s be filed against Defendants, he should contact the U.S. Attorney's Office d irectly. Accordingly, we dismiss Plaintiff's request.

Accordingly, IT IS HEREBY ORDERED that: 1 . Plaintiff's request to proceed in forma pauperis is granted; 2. Plaintiff's § 1985 and § 1964 claims are dismissed, without p reju d ice; and 3 . Plaintiff's request to have criminal charges filed against D efen d an ts is denied.
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D A T E D : December 15, 2009

Honorable N. Randy Smith N in th Circuit Court of Appeals Judge

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