Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On June 19, 2008, plaintiff filed a motion for leave to amend, along with a proposed amended complaint. Defendants Sokolov, Sacramento County, Peterson, Painter, Cakalach and Kearsing, have filed statements of non-opposition to the motion to amend.*fn1
The 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. § 1915A(b)(1),(2).
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, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). 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 Hosp. 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).
In his amended complaint, plaintiff adds defendants Barbara McDermott, Ph.D., Lori Serverance, L.C.S.W., Mark Hopkins, A.S.W., University of California Medical Center, and the Sacramento County Board of Supervisors. However, the amended complaint includes no charging allegations as to the University of California Medical Center. Accordingly, the court will not order service of process on that defendant.
The amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) as to the previously-named defendants Sokolov, Painter, Cakalach, Petersen and Kearsing, and the new defendants, Barbara McDermott, Ph.D., Lori Serverance, L.C.S.W., Mark Hopkins, A.S.W. and the Sacramento County Board of Supervisors. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
In addition, on July 7, 2008, plaintiff filed a motion for leave to file a supplemental pleading. In the supplemental pleading, plaintiff states that "the municipality policy or custom violated plaintiff's rights and constituted punishment under the Fifth and Fourteenth Amendment to the United States Constitution and state and federal laws," citing City of Canton Ohio v. Geraldine Harris, 489 U.S. 278, 109 S.Ct. 1197 (1989). This claim, when read in conjunction with plaintiff's claims against the County of Sacramento Board of Supervisors (AC ¶¶ 63-65, 73-74) states a cognizable civil rights claim under 42 U.S.C. § 1983. See Brandt v. Madera County Board of Supervisors, 84 Cal.App.3d 598, 600, 147 Cal.Rptr. 468 (1978)(implication Board could be held responsible for conditions in the county jail, if sheriff's department was not adequately funded); see also Board of Supervisors v. Superior Court (Armstrong), 33 Cal.App.4th at 1739, 39 Cal.Rptr.2d 906; Von Colln v. County of Ventura, 189 F.R.D. 583, 601 n.12 (C.D.Cal.1999). Accordingly, plaintiff's motion to supplement the pleading will be granted. In the interest of judicial economy, the Clerk of the Court will be directed to copy plaintiff's supplemental pleading (docket No. 59, page 6 only), and insert it into plaintiff's proposed amended complaint, filed June 19, 2008 (docket no. 52), between pages 29 and 30. The Clerk of the Court will then be directed to remove the June 19, 2008 amended complaint and file it as a separate amended complaint filed June 19, 2008.
Those defendants who have previously answered will notify the court within twenty days whether they intend to stand on their answers or file a revised answer to the amended complaint. Plaintiff will be directed to provide service forms for the added defendants.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's June 19, 2008 motion to amend (docket no. 52) is granted.
2. Plaintiff's July 7, 2008 motion for leave to file a supplemental pleading (docket no. 59) is granted.
3. The Clerk of the Court shall make a copy of page six of plaintiff's motion to supplement pleadings, filed July 7, 2008 (docket no. 59). The Clerk of the Court shall then remove the June 19, 2008 amended complaint from docket no. 52. The Clerk of the Court shall insert the copy of page six of plaintiff's motion to supplement pleadings, filed July 7, 2008 (docket no. 59), as page 29a (between pages 29 and 30) of the amended complaint. The Clerk of the Court shall then file the amended complaint as a separate document on the docket for this action. The Clerk of the Court is also directed to change the title of this case on court records as noted above.
4. Service is appropriate for the following defendants: Barbara McDermott, Ph.D., Lori Serverance, L.C.S.W., Mark Hopkins, A.S.W. and the Sacramento County Board of Supervisors.
5. Those defendants who have previously answered will notify the court within twenty days whether they intend to stand on their answers or file a ...