The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS AND ORDER
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed March 26, 2009, plaintiff's complaint was dismissed with leave to file an amended complaint. (Dkt. No. 9.) Plaintiff filed an amended complaint and followed it with a motion for leave to file a second amended complaint. (Dkt. Nos. 13, 22.) The court will grant the motion and execute its duty to screen all pro se prisoners' complaints with respect to the second amended complaint.*fn1 28 U.S.C. § 1915A.
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.
When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
The second amended complaint states some cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). However, the complaint does not adequately plead each claim alleged against every defendant. Rather, the court finds that if the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action only as to the following claims and defendants:
With respect to Claim I for use of excessive force, the complaint states a viable cause of action against defendant J. Freeman III.
With respect to Claim II for unlawful conditions of confinement, the complaint states a viable cause of action against defendants Sisto, Singh, Traquina, Cate, Greer, Gentry, Nuehring, Jones, Shockley, Fleishman and Petersen.
With respect to Claim III for deliberate indifference to a serious medical need, the complaint states a viable cause of action against defendants Deur, Eck, Noriega and DeChant.
With respect to Claim IV, the complaint does not state an independent cause of action against any defendant. However, defendants to Claim II are apprised that to the extent plaintiff has alleged mental or psychological suffering as a result of his placement on contraband surveillance watch, that is an element of the cognizable claim for unconstitutional conditions of confinement stated in Claim II. See Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).
With respect to Claims V and VI, the complaint does not state a cause of action against any defendant.
As the court stated in its initial screening order, the Eleventh Amendment prohibits suits for damages against state officials in their official capacities. See Order at 9 (Dkt. No. 9)(citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)). Therefore, none of plaintiff's claims is viable as a claim for damages against any defendant sued in his or her official capacity.
Plaintiff has also filed a motion for additional time in which to serve defendants and a motion for an order directing the U.S. Marshal to serve defendants. (Dkt. Nos. 19, 21.) An order regarding service of a pro se prisoner's complaint follows the successful screening of the complaint under 28 U.S.C. § 1915A and plaintiff's submission of the appropriate service documents. Such an order is therefore the prerogative of the court, not the plaintiff. Both of plaintiff's motions regarding service of his complaint will be denied. The court will order service upon ...