Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's May 22, 2008 amended complaint is now before the court.*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.
In his amended complaint, plaintiff names four defendants: Dr. Robert Klingman, Dr. Ramzi Deeik, P. Michaele Deus, R.N., F.A., and Dr. Harry Dassah. However, plaintiff provides no charging allegations as to defendants Dr. Deeik or R.N. Deus. Accordingly, the court will not order service of process on these two defendants.
Plaintiff alleges that prior to his coronary artery bypass surgery he was able to walk and breathe on his own. After the surgery, plaintiff has great difficulty breathing while lying upon his back and now requires the aid of a medical device which supplies oxygen daily. Plaintiff states he is unable to ambulate more than a few steps and must use a wheelchair. Plaintiff seeks compensatory and punitive damages for defendant Klingman's malpractice during the operation.
As explained in this court's March 17, 2008 order, plaintiff's allegations as to defendant Klingman do not state a cognizable civil rights claim. (Id.) The exhibits provided by plaintiff demonstrate that plaintiff received follow-up care following the damage to his phrenic nerve, and his allegations constituted, at most, medical negligence. (Id.)
However, plaintiff has stated a claim of deliberate indifference to serious medical needs by Dr. Dassah. Plaintiff contends that Dr. Dassah "neglected to examine him, and indicated he had no knowledge of any phrenic nerve damages in regard [to] diagnoses involving plaintiff" (Amended Complaint at 4), and that he has not been provided follow-up care for his breathing problem. (Id.)
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 defendant Dassah. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following defendant: Dr. Dassah.
2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed May 22, 2008.
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission ...