Opinion
No. CIV S-06-0729 GEB GGH P.
October 17, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On January 26, 2007, the court dismissed this action. On September 25, 2008, the Ninth Circuit Court of Appeals reversed and remanded this action. Accordingly, the court reconsiders the first amended complaint filed December 7, 2006.
A claim 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.
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 Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action."Id., quoting 5 C. Wright A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). 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 (1969).
The first amended complaint states a colorable Eighth Amendment claim for relief against all defendants pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b).
Plaintiff also alleges that defendants violated state law by breaching a settlement agreement reached in the United States District Court for the Northern District of California. So that this court may determine whether it has jurisdiction to consider plaintiff's enforcement of settlement claim, apparently a state law claim for breach of contract, plaintiff is ordered to file a copy of the settlement agreement, and/or any other document reflecting whether the Northern District retained jurisdiction to enforce the terms of the settlement.
Accordingly, IT IS HEREBY ORDERED that plaintiff is granted thirty days from the date of this order to file a copy of the settlement agreement reached in the Northern District; following review of that document, the court will issue further orders.