The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER (1) DISMISSING COMPLAINT IN PART AND (2) DIRECTING SERVICE
On April 15, 2008, pro se prisoner Plaintiff Oscar Arreola ("Plaintiff") filed a Complaint against Defendant Dr. G. Dudley ("Dr. Dudley"), his prison assigned physician and the California Department of Corrections and Rehabilitation ("CDCR") (collectively, "Defendants") alleging violations of his constitutional rights and various state law claims for Defendants' failure to properly and timely treat his hepatitis-c. Plaintiff is currently incarcerated at High Desert State Prison ("HDSP") in Susanville, California. Based on the following, the court DISMISSES in part Plaintiff's Complaint and DIRECTS SERVICE on Defendant Dr. Dudley.
Although not entirely clear, Plaintiff alleges that Defendants' deliberate indifference to his medical needs violated 42 U.S.C. § 1983. Plaintiff also claims that Defendants' actions constituted "gross negligence" and that "Defendants have inflicted upon the Plaintiff . . . wanton infliction of emotional distress." Compl. at unmarked page 18. Specifically, Plaintiff alleges that the Defendants have: (1) failed to make a policy or to take affirmative action to prevent the transmission of hepatitis-c at HDSP, id. at unmarked pages 5-6, 14; (2) refused to treat Plaintiff for hepatitis-c beginning or around January 2007 to the present, id. at unmarked pages 6, 10-13; and (3) that Dr. Dudley lied to Plaintiff about his hepatitis-c test results. Id. at unmarked pages 6, 12. Plaintiff requests compensatory and injunctive relief.
Pursuant to 28 U.S.C. § 1915A(a), the court must screen cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental agency. The court must dismiss a complaint or portion thereof if a plaintiff has raised claims that (1) are legally frivolous or malicious, (2) fail to state a claim upon which relief may be granted, or (3) 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 Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996); Franklin, 745 F.2d at 1227.
The court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt. Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "Unless it is absolutely clear that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).
Plaintiff brings a § 1983 claim and various state law claims against Dr. Dudley, his prison assigned physician, and the CDCR. The court addresses his claims against each Defendant below.
A. Plaintiff's Claims Against the CDCR
The CDCR is entitled to Eleventh Amendment immunity and, therefore, is not a proper Defendant.
Under the Eleventh Amendment of the Constitution of the United States, neither a state nor one of its agencies may be sued in federal court without its consent. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A state department of corrections is a state agency that is entitled to Eleventh Amendment immunity. See Alabama v. Pugh, 438 U.S. 781, 782 (per curiam) (1978) (concluding that Alabama Board of Corrections was entitled to Eleventh Amendment immunity unless Alabama consented to filing of suit); Hale v. Arizona, 993 F.2d 1387, 1399 (9th Cir. 1993). Further, because a state department of corrections is an arm of the state entitled to Eleventh Amendment immunity, it is not a person for purposes of § 1983. See Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (stating that government entity considered an arm of the state for Eleventh Amendment purposes is not a "person" under § 1983); Hale, 993 F.2d at 1399 (concluding that Arizona Department of Corrections is an arm of the state entitled to Eleventh Amendment immunity and, thus, not a "person" ...