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 February 5, 2009, this court dismissed pro se prisoner Plaintiff Ronald K. Peterson's ("Plaintiff") Complaint for failure to state a claim with leave to amend. On March 30, 2009, Plaintiff filed an Amended Complaint against Defendants County of Solano ("County"), Correctional Officer Anthony Cuevaz ("Cuevaz"), Sheriff of Solano County Gary R. Stanton ("Sheriff Stanton")*fn1 (collectively, "Defendants") alleging violations of his constitutional rights based upon Cuevaz' alleged inappropriate comments and behavior towards Plaintiff and Sheriff Stanton and the County's alleged deliberate indifference. Based on the following, the court DISMISSES the Amended Complaint IN PART and DIRECTS SERVICE.
Plaintiff alleges that Cuevaz violated his rights during an incident that occurred on March 4, 2008 when Cuevaz collected a urine sample from Plaintiff for a diabetes test. Am. Compl. at 5, unmarked page 9.*fn2 Specifically, Plaintiff claims that Cuevaz was "constantly peering" at him and asked another inmate, David McCray, to come down off his bunk and hold his penis for him while he urinated. Id. Plaintiff also alleges that after this incident Cuevaz continued to harass him. Id. at 8.
Plaintiff claims that the County and Sheriff Stanton are liable for Cuevaz' actions based on a theory of "negligent supervision" and for their "deliberate indifference." Id. at 5, 7. Specifically, Plaintiff alleges that Sheriff Stanton and the County: (1) did nothing to protect him from Cuevaz, id. at 5-8; (2) failed to investigate the matter, id. at 8; (3) "failed to take immediate and appropriate corrective action" or discipline Cuevaz in anyway, id. at 5-6; (4) "laugh[ed] off the matter[,]" id. at 6; (5) allowed Cuevaz to continue to work around Plaintiff after the alleged incident, id. at 6-8; and (6) failed to protect him against further harassment, which he claims occurred. Id. at 8. Plaintiff requests monetary relief against and punitive damages. Id. at 5-6.
Additionally, Plaintiff claims that the County and Sheriff Stanton failed to provide him adequate counseling and medical care that he requested as a result of the incident. Id. at 8.
As Plaintiff is aware from the February 5, 2009 Order, 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).
Construing Plaintiff's claims liberally and affording him the benefit of the doubt, he brings (1) a 42 U.S.C. § 1983 claim against correctional officer Cuevaz, the County, and Sheriff Stanton based upon Cuevaz' actions on March 4, 2008 and the County and Sheriff Stanton's deliberate indifference evidenced by their failure to discipline Cuevaz, (2) a § 1983 claim against the County and Sheriff Stanton based on his allegations that they provided him inadequate medical care, and (3) various state law claims. For the foregoing reasons, the court DISMISSES Plaintiff's Complaint in PART and DIRECTS SERVICE.
A. Plaintiff Fails to State a Claim Based upon Inadequate Medical Care
Plaintiff's allegations that the County and Sheriff Stanton failed to provide him with the counseling and medical care that he requested does not state a claim upon ...