Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed a motion requesting leave to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).
I. Motion to Proceed In Forma Pauperis
In his motion to proceed in forma pauperis, plaintiff argues that he is in imminent danger of serious physical injury as referred to in 28 U.S.C. § 1915(g). As in his complaint, plaintiff contends that despite having a lower bunk chrono, he has been assigned to an upper bunk at his institution of confinement. (Mot. for IFP, Doc. No. 1 at 2.) In this regard, plaintiff alleges as follows in his motion:
Plaintiff suffers from a weak and severe painful lower back, he has had a neck fusion, suffers from side effects of valley fever and has had spinal cord fusion and right wrist surgeries, and been placed on "limited work duties" all of which makes it medically necessary and a medical necessity to be immediately placed on/assigned to a "lower bunk" permanently as a doctor ordered.
(Id. at 3.) Plaintiff also alleges that he has to climb up and down the upper bunk without a ladder and that his bunk assignment causes him to "reinjure himself when falling from the top bunk[.]" (Id. at 4.) Although court records indicate that on at least three prior occasions, plaintiff has brought civil actions while incarcerated that were dismissed as frivolous, malicious, or failed to state a claim*fn1 , it appears that plaintiff satisfies the "imminent danger" exception under 28 U.S.C. § 1915(g) in connection with this action. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (requiring the court to liberally construe plaintiff's allegations when making the imminent danger determination).
Nonetheless, plaintiff has not submitted the in forma pauperis application form employed by this court. Therefore, the court will order plaintiff to submit a properly completed application to proceed in forma pauperis. Plaintiff is cautioned that the in forma pauperis application form includes a section that must be completed by a prison official, and the form must be accompanied by a certified copy of plaintiff's prison trust account statement for the six-month period immediately preceding the filing of this action.
II. Screening Requirement
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 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.
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)). However, 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." Bell Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
III. Deficiencies of Plaintiff's Complaint
In his complaint filed in this action plaintiff claims that his rights under the Fourteenth Amendment's due process and equal protection clause and Eighth Amendment have been violated. Plaintiff contends that defendants have "conspired to deny aforementioned constitutional protections to be assigned to a lower bunk, [which] resulted in unnecessary infliction of pain being deliberately indifference [sic] to plaintiff's serious medical needs." (Compl. (Doc. No. 1) at 5.) Plaintiff has attached to his complaint a "Comprehensive Accommodation Chrono," dated June 1, 2010 and signed by Dr. Andrew Nangalama, and which provides plaintiff with a permanent "Bottom Bunk" accommodation due to "Valley fever with complications and fused cervical spine." (Id. at 15.) In this action plaintiff has named as defendants Chief Medical Officer Walker, nurse Linggi, senior nurse Barajas, defendants Deems and Sumas with the California Department of Corrections and Rehabilitation's health care services, and the State of California. It appears that defendants Linggi, Barajas, Deems and Sumas have been named as defendants by plaintiff because of their involvement in his inmate appeal process. The State of California has apparently been named by plaintiff because it "is employer and sovereign entity establishing administrative and other process by which defendants are bound." (Id. at 7.) Plaintiff's complaint contains no factual allegations concerning defendant Chief Medical Officer Walker.
The allegations in plaintiff's complaint are so vague and conclusory that the court is unable to determine whether the current action is frivolous or fails to state a claim for relief. The 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 to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support his claims. Id. Because ...