The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND
I. INTRODUCTION AND FACTUAL BACKGROUND
On October 7, 2010, Plaintiff, LaMar Singleton ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this action against Eli Lilly Co. ("Defendant"). Plaintiff claims that Defendant manufactured, marketed, and sold Zyprexa. Zyprexa is a prescription medication used to treat mental conditions such as schizophrenia and bipolar disorder. See generally UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 124 (2d Cir. 2010). Plaintiff claims that taking Zyprexa caused him to develop type 2 diabetes, obesity, and permanent nerve damage and pain to both feet and hands. Plaintiff states that his claims arise under the Eighth and Fourteenth Amendments and requests $13,000,000 in damages.
In cases where the plaintiff is a prisoner proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
C. No Cognizable Federal Claim
The only potential federal claims that appear on the face of Plaintiff's complaint are alleged violations of the Eighth and Fourteenth Amendments. The Eighth Amendment prohibits federal and state governments from imposing cruel and unusual punishments and from imposing excessive fines and bail against individuals convicted of crimes. U.S. Const. amend. VIII. The Fourteenth Amendment encompasses a wide range of rights including citizenship, privileges and immunities, due process, equal protection, apportionment of representation, disqualification of officers, public debt, and enforcement. U.S. Const. amend. XIV.
To the extent that Plaintiff is asserting civil rights causes of action pursuant to 42 U.S.C. § 1983,*fn1 those claims are not viable. Section 1983 provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . ..
To state a claim pursuant to Section 1983, a plaintiff must plead facts indicating that the defendant acted under color of state law at the time the act complained of was committed and that the defendant deprived the plaintiff of the rights, privileges, or immunities secured by the Constitution or laws of the United States. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). Generally, private parties are not acting under color of state law, and their conduct does not constitute state action. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
For the conduct of a private person or entity to constitute state action, there must generally be two elements, including the exercise of a state-created right, privilege, or rule of conduct (state policy), and an actor who is either a state official, one who has acted together with a state official or has obtained significant aid therefrom, or one whose conduct is otherwise chargeable to the state (state actor). Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). Plaintiff has pled no facts indicating that Defendant is a state actor or was ...