The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff Mark Roll ("Plaintiff"), proceeding pro se and in forma pauperis, filed the instant action on November 4, 2008. He filed a First Amended Complaint on December 5, 2008. Plaintiff names the California Department of Corrections and Rehabilitation ("CDCR") and the Fresno County Coroner as Defendants.
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
Fed. R. Civ. P. 8(a) provides:
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support Plaintiff's claim. Id. Although a complaint need not outline all elements of a claim, it must be possible to infer from the allegations that all elements exist and that there is entitlement to relief under some viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998).
In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
B. Plaintiff's Allegations
Plaintiff's complaint involves the death of Justin Roll while in custody of Defendant CDCR. He alleges that CDCR failed to provide proper medical care, among other things, which ultimately led to Justin Roll's death. He also alleges that the Fresno County Coroner failed to provide complete and accurate reports and maintained inconsistent records.
Plaintiff alleges causes of action for "general negligence," gross negligence," "intentional tort," "medical malpractice," "professional malpractice," "violation of civil rights," and "fraud." He requests general, special and punitive damages.
In the caption of the First Amended Complaint and without further explanation, Plaintiff indicates that this Court has jurisdiction based on federal question and diversity of citizenship. However, insofar as Plaintiff suggests that this Court has diversity jurisdiction, there is no indication that diversity of citizenship exists between the parties. In fact, diversity of citizenship appears impossible given that Plaintiff and both Defendants reside in California. 28 U.S.C. § 1331(a)(1).
As to federal question jurisdiction, Plaintiff can only rely on his "civil rights" claim for failure to provide proper medical care. Under federal law, this would be a violation of the Eighth Amendment and would confer jurisdiction upon the Court. However, as the claim currently stands, it is ...