The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner, a state prisoner proceeding without counsel, has filed an action on a form for a petition for a writ of habeas corpus. While not entirely clear, it appears petitioner seeks curative surgery to conclude therapy. (Dkt. No. 1 at 4.) Petitioner appends a Health Care Services Request form signed by RN L. Yuson, which recommends sexual reassignment surgery, "if covered by current insurance." (Id.) Petitioner contends the denial of surgery violates her constitutional rights to due process and equal rights. Despite filing her claim on a habeas form, petitioner references "conditions of confinement" throughout the petition. Petitioner also provides a copy of the docket sheet for her civil rights action, Stevens v. Knowles, 2:08-cv-1675 AHM OP (C.D. Cal.), which was closed on February 27, 2012. Id., Dkt. No. 89.
A petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 challenges the fact or duration of a petitioner's conviction. By contrast, a civil rights action brought pursuant to 42 U.S.C. § 1983, challenges the conditions of the prisoner's confinement. Because petitioner's claims do not challenge her custody, they are not appropriate for a § 2254 action.
The court may construe a habeas petition as a civil rights complaint. See Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1992). While petitioner exhausted her state court remedies, it is unclear whether she exhausted her administrative remedies prior to filing this action.*fn1 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 conditions of 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.
Because it is unclear whether petitioner first exhausted her administrative remedies, the petition will be dismissed, but petitioner is granted leave to file an amended civil rights complaint. If petitioner opts to file an amended civil rights complaint, petitioner is required to pay the statutory filing fee of $350.00, 28 U.S.C. §§ 1914(a), 1915(b)(1), which will be deducted from her inmate trust account. If petitioner has not exhausted her administrative remedies through the third level of review, petitioner may opt to voluntarily dismiss this action. If petitioner chooses to voluntarily dismiss this action, the court will not assess the $350.00 filing fee. The court defers ruling on petitioner's request to proceed in forma pauperis until petitioner files her notice of election.
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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); 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 petitioner. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999).
Here, petitioner names J. Clark Kelso, federal receiver, Prison Health Care Services, and Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, as respondents. The Civil Rights Act under which this action was filed provides as follows:
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.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by petitioner. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where there is no evidence of personal participation). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).
Thus, in any amended complaint, petitioner must clearly identify individual defendants and link each to factual allegations that petitioner claims constitute a constitutional violation. If petitioner's claims against Kelso or Cate are based solely on a theory of respondeat superior, ...