UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 21, 2009
GERARD JONES PLAINTIFF,
CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, N. ATHANASSIOUS, DR. KENDALL, DR. BASI, DR. PETER V. LEONI, DR. NORIEGA DEFENDANTS.
The opinion of the court was delivered by: John C. Coughenour United States District Judge
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis under 28 U.S.C. § 1915.
Pursuant to a federal statute, a filing fee of $350.00 is required to commence a civil action in federal district court. 28 U.S.C. § 1914(a). The Court may authorize the commencement of an action "without prepayment of fees or security therefor" by an individual who submits an affidavit with evidence showing an inability to pay such fees or give security therefor. 28 U.S.C. § 1915(a).
Plaintiff has submitted a declaration that makes the required showing. Accordingly, the request to proceed in forma pauperis is GRANTED.
Although prepayment is not required, Plaintiff must still pay the statutory fee of $350 for this action. 28 U.S.C. § 1914(a), 1915(b)(1). Because Plaintiff has no funds in his account, the Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). By separate order, the Court will direct the appropriate agency to collect the filing fee from Plaintiff's trust account and forward it to the Clerk of the Court. Plaintiff will be obligated to make monthly payments in the amount of twenty percent of the preceding month's income credited to his trust account. 28 U.S.C. § 1915(b)(2). These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10.00, until the statutory filing fee of $350.00 is paid in full. 28 U.S.C. § 1915(b)(2).
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 a portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(A)(b)(1), (2). In his Complaint, Plaintiff sues the following six Defendants: the California Department of Corrections and Rehabilitation ("CDCR"); Dr. N. Athanassious, Chief Surgeon; Dr. Kendall, California Medical Facility, Vacaville; Dr. Noriega, California State Prison, Solano; Peter V. Leoni, California Medical Facility, Vacaville; and Dr. Basi, California State Prison, Solano. (See Compl. (Dkt. No. 1 at 3).)
Because CDCR is immune from suit, the Court dismisses CDCR as an improper defendant.
Under the Eleventh Amendment to the United States Constitution, a state or state agency may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman,465 U.S. 89, 100 (1984). Further, "a state is not a 'person' for purposes of section 1983. Likewise 'arms of the State' such as the... Department of Corrections are not 'persons' under section 1983." Gilbreath v. Cutter Biological, Inc.,931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted).
Therefore, the Court will dismiss Defendant CDCR from this action. See Perkins v. Cal. Dep't of Corr. & Rehab., No. CV 1-06-1177-NVW, 2009 U.S. Dist. LEXIS 3274, at *4 (E.D. Cal. Jan. 8, 2009) (dismissing Defendant CDCR without prejudice as an improper defendant); Knapp v. Cal. Dep't of Corr. & Rehab., No. CV 1-08-780-ROS, 2009 U.S. Dist. LEXIS 5077, at *4 (E.D. Cal. Jan. 16, 2009) (same).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is GRANTED.
2. All fees shall be collected and paid in accordance with this Court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Defendant CDCR is DISMISSEDwithout prejudice.
4. Service is appropriate for the following Defendants: N. Athanassious, Dr. Kendall, Dr. Basi, Dr. Peter V. Leoni, and Dr. Noriega.
5. The Clerk of the Court shall send Plaintiff five USM-285 forms, one summons, an instruction sheet, and a copy of the complaint filed May 19, 2008.
6. Within thirty days from the date of this Order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the Court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 4 above;
d. Six copies of the endorsed complaint filed May 18, 2008.
7. Plaintiff need not attempt service on Defendants and need not request waiver of service.
Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve each Defendant listed in number 4 above pursuant to Federal Rule of Civil Procedure 4 (c)(3) without payment of costs.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the Court's Order
Completed summons form
Completed USM-285 forms
Copies of the complaint
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