Opinion
No. 2:15-cv-1151 AC P
12-18-2015
LUIS LORENZO ARMENTERO, Plaintiff, v. CITY OF VACAVILLE, et al., Defendants.
ORDER
Plaintiff is a state prisoner incarcerated at California State Prison Solano (CSP-SOL), who proceeds pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). See ECF No. 6.
This is the court's third order addressing the inadequacies of plaintiff's in forma pauperis application. Most recently, plaintiff submitted an application that does not include the date of his signature (see ECF No. 10 at 2); lacks the certification portion of the application required in this district (id.); and provides a copy of his prison trust account statement which, though certified, reflects plaintiff's account balance only for the single date October 1, 2015 (id. at 3). Plaintiff's only other pertinent filing is a copy of his prison trust account statement for the single date May 19, 2015. See ECF No. 5.
Plaintiff should be familiar with the pertinent requirements because he has filed more than fifteen cases in this court. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (a court may take judicial notice of its own records and the records of other courts); accord, United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
This court has twice informed plaintiff that he must pay the required fees ($400.00), or submit a fully completed in forma pauperis application that is certified by an authorized officer at his place of incarceration, and provide a certified copy of his prison trust account statement for the six-month period preceding the filing of his complaint, see 28 U.S.C. § 1915(a)(2). The court's last order indicated that plaintiff would be accorded "one final opportunity." See ECF No. 7 at 1; see also id. at 2 ("Plaintiff's failure to comply with this order will result in the dismissal of this action without prejudice."). Plaintiff's current filing reflects that opportunity.
In an effort to determine whether plaintiff should be accorded any additional guidance and time to comply with the court's orders, the undersigned has conducted a preliminary review of plaintiff's complaint. See 28 U.S.C. § 1915A. The complaint alleges in pertinent part:
Once a prisoner's in forma pauperis application is granted, or the plaintiff has paid the filing fee, the court is required to screen the complaint. 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). See also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (claim is legally frivolous when it lacks an arguable basis either in law or in fact).
Since May 27, 2015, all the named defendants . . . are subjecting to [sic] plaintiff to obey an arbitrary, oppressive, punitive and ridiculous custom, practice and policy . . . [requiring prisoners to] take out a piece of cardboard or a yellow manila envelope through the cell door crack to make flags to the defendants' booth officer to get the cell door opened.ECF No. 1 at 3; see also id. at 5-6. The complaint alleges that the challenged practice interferes with plaintiff's "rights, privileges, medical and other appointments and prison program." Id. at 3. Plaintiff seeks damages and injunctive relief. The named defendants are City of Vallejo (the location of CSP-SOL), the CSP-SOL Warden, three named CSP-SOL Correctional Officers, and the Director of the California Department of Corrections and Rehabilitation (CDCR). The complaint states that plaintiff's administrative appeal on this matter was rejected three times at the first level; the second level was "obstructed;" and the "Third Level and the regional office referred the appeal from return to my appeals coordinator's office whom failed to respond it" [sic]. Id. at 2.
The court finds that the allegations of the complaint fail to state a cognizable civil rights claim. To the extent that the challenged practice is standard at CSP-SOL, legitimate penological objectives support an ordered, peaceful means for prisoners to alert prison officials that they request leave from their cells for medical appointments or other authorized reasons. See Turner v. Safley, 482 U.S. 78 (1987) (setting forth factors to be balanced in determining whether a prison regulation is reasonably related to legitimate penological interests). Moreover, plaintiff concedes that he has not exhausted his administrative remedies. For these reasons, it would be both futile and an unnecessary expenditure of judicial resources to permit plaintiff to again attempt to submit a completed in forma pauperis application.
The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust "such administrative remedies as are available" before commencing a suit challenging prison conditions. See 42 U.S.C. § 1997e(a); see also Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005). Although the PLRA does not require exhaustion "when circumstances render administrative remedies 'effectively unavailable,'" Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (citation omitted), this court need not reach that question due to the frivolity of plaintiff's claim. --------
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis, ECF No. 10, is denied because it remains incomplete.
2. This action is dismissed without prejudice for failure to comply with court orders, see Fed. R. Civ. P. 41(b), and because the complaint does not state a potentially cognizable claim for relief, see 28 U.S.C. § 1915(A).
3. The Clerk of the Court is directed to close this case. DATED: December 18, 2015
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE