The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with a civil rights action brought pursuant to 42 U.S.C. § 1983. On July 13, 2009, plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Plaintiff's March 26, 2010 amended complaint is now before the court.
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 when 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, 550 U.S. 544, 555 (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." 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, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
In plaintiff's original complaint, plaintiff challenged mental health care at High Desert State Prison. In his amended complaint ("AC"), however, plaintiff transformed his pleading into a challenge to mental health care provided over years of incarceration in at least two different prisons.
First, plaintiff is advised that he must have exhausted his claims through the third level prior to filing the instant action. The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding the conditions of their confinement, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532.
The instant action was filed July 2, 2009. Exhibit A to plaintiff's AC demonstrates plaintiff exhausted some of his claims after the filing of this action:
HDSP-31-09-13060 Third level denied December 21, 2009 HDSP-31-09-13233 Third level received on November 19, 2009, and as of January 26, 2010, no third level decision had been rendered. (AC at 13.) Because these claims were not exhausted prior to the filing of the instant action, the AC will be dismissed, but plaintiff will be provided an opportunity to file a second amended complaint. However, plaintiff should not include these claims in any second amended complaint. Plaintiff must file a new civil rights action to pursue these grievances, and is cautioned that he should not file a complaint in federal court for HDSP-31-09-13233 until he receives his third level decision.
However, a third level denial in DVI-08-1570*fn1 issued June 17, 2009 (AC at 13), prior to the July 2, 2009 filing of the instant complaint. Plaintiff may pursue these claims in this action. Because plaintiff's allegations in DVI-08-1570 occurred in Deuel Vocational Institution and plaintiff is now incarcerated at High Desert State Prison, he also should not include claims for injunctive relief. As a general rule this court is unable to issue an order against individuals who are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969).
In addition, in plaintiff's original complaint, he failed to identify individual defendants or provide facts concerning alleged harm to his liver. In his AC, plaintiff has failed to clearly identify which defendants he is seeking to sue in the instant action. For example, on the first page, he identifies the defendants as "T. Kimura, et al., Psych Services, et al., Calif. Dept. of Corr. & Rehab., Psych Services, et al., High Desert State Prison - Psych Services, et al., Deuel Vocational Institution Reception Center Psych Services, et al." (AC at 1.) However, in the "Defendants" portion of the AC, he names only T. Kimura as a defendant. (Id. at 2.) Plaintiff then names various persons throughout the text of his complaint, but does not make clear whether he intends to sue any or all of them who are not named in the caption of the AC on page one. Moreover, in the exhibits, plaintiff provides a list of defendants, only one of which is named in the caption of the AC. (AC, Ex. A, at 14.) Plaintiff is advised that in any second amended complaint, he must clearly identify the named defendants in the caption and in the defendants portion of the complaint. Neither the court, nor defendants, will review the text of, or exhibits to, a complaint to determine who plaintiff is naming as a defendant.
Also, plaintiff named Deuel Vocational Institution Reception Center Psych Services as one of the defendants. The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978)( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of California has not consented to suit. Accordingly, plaintiff's claims against this defendant are frivolous and should not be renewed in any second amended complaint.
The court finds the allegations in plaintiff's amended complaint so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. The court has determined that the amended complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Because plaintiff has failed to comply ...