Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed February 23, 2011, the court ordered the United States Marshall to serve process on five defendants named in plaintiff's original complaint, including Dr. M. Bobballa; Nurse M. Joyce; Chief Psychologist K. Morgan; Warden T. Virga; and Correctional Officer Shearer.
On March 3, 2011, plaintiff filed a request for voluntary dismissal of defendants Virga, Morgan and Boballa. Included in that request was a request to add two new defendants to this action. By order filed March 28, 2011, the court granted plaintiff's request for voluntary dismissal of defendants Virga, Morgan and Boballa, vacated the order directing the United States Marshal to serve process on defendants, and dismissed plaintiff's complaint with thirty days leave to file an amended complaint.
On April 26, 2011, plaintiff filed a first amended complaint and a motion for a temporary restraining order. On August 18, 2011, plaintiff filed a document styled as a motion for default judgment. On September 9, 2011, plaintiff filed a document styled as a motion to change his claim and reinstate defendants Virga and Morgan. By order filed October 4, 2011, plaintiff's amended complaint was dismissed and plaintiff was granted thirty days in which to file a second amended complaint. Plaintiff has now filed a second amended complaint.
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 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, 127 S.Ct. 1955, 1964 (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." Bell Atlantic, 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, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff has named twenty-nine defendants in his second amended complaint, and he attempts to raise several distinct claims, including claims of deliberate indifference to his serious medical needs, excessive force, and retaliation. While it is clear that plaintiff has stated some cognizable claims for relief in the second amended complaint, the pleading also contains a lot of "narrative rambling". McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996).
In McHenry, the Ninth Circuit Court of Appeal upheld the dismissal of a complaint it found to be "argumentative, prolix, replete with redundancy, and largely irrelevant. It consists largely of immaterial background information." The court observed the Federal Rules require that a complaint consist of "simple, concise, and direct" averments. Id. As a model of concise pleading, the court quoted the standard form negligence complaint from the Appendix to the Federal Rules of Civil Procedure:
1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway, called Boylston Street, in Boston Massachusetts, defendant negligently drove a motor vehicle against plaintiff, who was then crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken, and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against defendant in the sum of one thousand dollars.
Plaintiff's complaint suffers from many of the same problems as the pleading dismissed in McHenry. As in McHenry, "[p]rolix, confusing complaints such as the ones plaintiffs filed in this case impose ...