Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is plaintiff's complaint, request for leave to proceed in forma pauperis, and several motions. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).
APPLICATION TO PROCEED IN FORMA PAUPERIS
On March 10, 2011, the court ordered plaintiff to submit a new application for requesting leave to proceed in forma pauperis because his initial application was incomplete. Subsequently, plaintiff filed two applications and a motion styled, "Motion For Acceptance Of Application to Proceed In Forma Pauperis." See Doc. Nos. 11-13. The in forma pauperis application filed on March 25, 2011 (Doc. No. 13), makes the showing required by 28 U.S.C. 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis. The motion for acceptance of the in forma pauperis application (Doc. No. 12) will be denied as unnecessary.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1). An initial partial filing fee of $13.00 will be assessed by this order. See 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).
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).
PLAINTIFF'S COMPLAINT (Doc. No. 1)
In his complaint plaintiff alleges as follows. Plaintiff is incarcerated at Deuel Vocational Institution (DVI) where the incidents at issue occurred. Since 2005, plaintiff has had "degenerative back problems" and suffers from "some form of neuropathy in [his] right arm and lower back" which causes "extreme plain," periodic limited mobility, and incontinence. (Doc. No. 1 at 4.)
On June 22, 2010, plaintiff submitted a 602-inmate appeals form concerning the medical care he was receiving to defendant Rackley, the Chief Deputy Warden. (Id. at 4-5.) Not until February 2, 2011, was plaintiff's appeal denied at the Director's Level of review with the time limitations for responding to his appeal being violated by prison officials. (Id. at 5.)
Following this appeal, plaintiff submitted an ADA complaint. (Id.) For a 30-day interim period, he was provided a wheelchair and a bottom bunk chrono by prison officials . (Id.) Defendant Sergeant Daniels attempted to interview plaintiff at his cell concerning his medical issues. (Id. at 6.) However, plaintiff "immediatly [sic] invoked his Sixth Amendment right to Doctor/Patient Privilege [sic]." (Id.) Plaintiff's ADA claim was subsequently denied by defendant Rackley due to plaintiff's refusal to talk to defendant Daniels. (Id.)
In the prayer for relief of his complaint, plaintiff seeks an order compelling defendants "to provide medical relief[,]" a preliminary injunction, reasonable attorney fees, and a declaration that "failure to follow time constraints violates due process[,]" that defendants' actions constitutes cruel and unusual punishment and violate his Sixth Amendment right to doctor/patient privilege. (Id. at 4.) As for the medical care he seeks, plaintiff vaguely asserts that he has not received "adequate medical care" and that this has denied him "due process and constitutes cruel and unusual punishment." (Id. at 5.) Plaintiff also indicates that he was taking a neuropathy medication for seven years but that it was discontinued by prison officials. (Id.) It is unclear, however, if this allegation provides a separate basis for plaintiff's medical care claim.
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. 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). Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint. In his amended complaint, plaintiff must clarify whether he is claiming a violation of the Americans with Disabilities Act (ADA) and/or the Eighth Amendment. Plaintiff must also set forth factual allegations addressing each element of the claims he is attempting to raise in this action.
I. Requirements for Amended Complaint
Plaintiff must allege facts demonstrating how the conditions complained of resulted in a deprivation of plaintiff's federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Any amended complaint plaintiff elects to file must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. ...