The opinion of the court was delivered by: Helen Gillmor Chief United States District Judge
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915a(b)(1) WITH LEAVE TO AMEND
On April 7, 2008, Plaintiff Latwahn McElroy filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983.*fn1 In his Complaint, (Doc. 1), Plaintiff alleges medical neglect. Plaintiff names the California Department of Corrections, and three Doe Defendants in their official capacities, including two medical doctors and one registered nurse, as Defendants.
For the following reasons, the Complaint is DISMISSED for Plaintiff's failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1), with leave to amend.
The Plaintiff sets forth one cause of action in his Complaint. (Compl., Doc. 1.) Plaintiff complains that Defendants failed to provide Plaintiff with adequate medical treatment when between March 20, 2008 and April 7, 2008, they allegedly discontinued various prescriptions, including dietary supplements, skin treatments, and medications, and discontinued a prescription providing for a wheel chair with a leg extension. (Id. at 3-6.) Plaintiff does not specifically allege a violation of his constitutional rights. The Court construes the Complaint as alleging medical neglect in violation of the Eighth Amendment of the United States Constitution.
Plaintiff describes the Doe Defendants as medical personnel employed by the California Department of Corrections, but fails to name any specific individual who is responsible for any alleged failure to provide Plaintiff medical care.
Plaintiff seeks monetary damages as well as injunctive relief in the form of treatment, physical therapy, and surgical evaluation at a location outside of the Sacramento Medical Center. (Id. at 6.)
STATUTORY SCREENING OF THE COMPLAINT
A federal district court is required to screen any case in which a prisoner seeks redress from 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 a plaintiff raises 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) and (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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 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 claim fails to state a claim upon which relief may be granted if it appears that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, Inc., 651 F.2d 1289, 1294 (9th Cir. 1981).
During screening, the court must accept as true the allegations of the complaint, Hosp. Bldg. Co. v. Rex Hosp. Tr., 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); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003) (the court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt). The court is not required to accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
If the court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 66 F.3d 245, 248 (9th Cir. 1995). A district court should not, however, advise the litigant on how to cure the defects. Such advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of law. Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted); West v. Atkins, 487 U.S. 42, 48 (1988).
Mere allegations that a right secured by a state law has been violated do not satisfy the first element of a claim under § 1983. See Lovell v. Poway Unified School ...