Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Several matters are pending before the court.
By order filed September 9, 2008, the court directed the United States Marshal to serve process on defendants Hubbard, Andreasen, Sabin, Grannis, Zue, Gibbs, Duffy, Williams, Johns, Shelton and Borbe. On October 9, 2008, summons directed to defendant Zue was returned unexecuted. On November 7, 2008, plaintiff was directed to complete and return forms necessary to effect service on defendant Zue. On December 10, 2008, defendants Hubbard, Andreasen, Sabin, Grannis, Gibbs, Duffy, Williams, Johns, Shelton and Borbe filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On December 19, 2008, plaintiff submitted forms for service of process completed for an individual named Zhu. On December 19, 2008, plaintiff filed an application for an extension of time to file an opposition to defendants' motion to dismiss, which was granted by order filed January 14, 2009. On January 22, 2009, plaintiff filed a request for leave to amend his complaint together with an amended complaint. On January 28, 2009, plaintiff filed an opposition to defendants' motion to dismiss. On January 29, 2009, defendants filed a request for an extension of time to file an opposition to plaintiff's request for leave to amend. On February 6, 2009, defendants filed a statement of non-opposition to plaintiff's request to amend. In the statement of non-opposition, defendants withdraw their December 10, 2008 motion to dismiss. On February 6, 2009, plaintiff's wife filed a letter complaining about alleged retaliation against plaintiff. On the same day, plaintiff filed objections to defendants' request for extension of time.
Review of the record shows that defendants' response to plaintiff's request for leave to amend was timely filed. See Order filed September 9, 2008, at ¶ 7. Defendants' January 29, 2009 request for extension of time and plaintiff's objection thereto are therefore moot and on that basis will be denied and overruled, respectively.
Plaintiff is proceeding pro se in this action and is the sole plaintiff. Any request for court action must be filed by plaintiff himself, and not by his wife or any other individual acting on his behalf. The court will not take any further action on the February 6, 2009 letter from plaintiff's wife.
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.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, U.S. , 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim 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, id. However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, U.S. , 127 S.Ct. 2197, 2200 (2007) (quoting Bell, slip op. at 7-8, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff names fourteen defendants in the amended complaint filed June 16, 2008, including Joseph Bick, M.D., and R. Perez. Although there are requests for injunctive relief that refer to Dr. Bick, there are no charging allegations against either Dr. Bick or R. Perez. Accordingly, the court will not order service of process on either of these individuals.
The amended complaint states a cognizable claim for relief against the remaining named defendants pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
Ten of the twelve defendants against whom the amended complaint states a cognizable claim for relief have already appeared in the action. Those defendants will be directed to respond to the amended complaint within thirty days from the date of this order. Two of the defendants, Dr. Zhu and Officer Chanan, have not yet been served with process. Good cause appearing, counsel for defendants Hubbard, Andreasen, Sabin, Grannis, Gibbs, Duffy, Williams, Johns, Shelton and Borbe will be directed to inform the court in ten days whether counsel will accept service on behalf of defendants Zhu and Chanan.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Defendants' December 10, 2008 motion to dismiss is withdrawn.
2. Plaintiff's January 22, 2009 request for leave to amend is granted.
3. Defendants' January 29, 2009 request for extension of time and plaintiff's February 6, 2009 objection thereto are ...