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David G. Leonard v. Jim Denny

July 10, 2012

DAVID G. LEONARD, PLAINTIFF,
v.
JIM DENNY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

The certificate portion of plaintiff's motion to proceed in forma pauperis, which must be completed by plaintiff's institution of incarceration, has not been filled out. Also, the court has not received a certified copy of plaintiff's prison trust account statement for the six month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2).

The court notes that plaintiff has written a letter, dated April 9, 2012, which reads that he is submitting his completed certification along with the April 9, 2012 letter. See Doc. No.

7. However, a review of the court's electronic filing system reflects that no certification is attached to the letter. Id. Accordingly, plaintiff will be provided the opportunity to submit a completed certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint in support of his application.

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.

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 Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

Summary of Complaint

Plaintiff, who is currently a prisoner at Avenal State Prison, alleges that he received inadequate medical care in violation of the Eighth and Fourteenth Amendments while he was detained at Sutter County Jail from June, 2009 through April, 2010. He names as defendants a physician and nurse at the jail, as well as the county sheriff, the county sheriff's department, the county, and the county jail. See Doc. No. 1 at 2, § III. He seeks injunctive, declaratory, and monetary relief, including "third party damages." See id. at 43-46.

In addition to himself, plaintiff names as an additional plaintiff a minor child. See Doc. No. 1 at 7, ¶ 5. Plaintiff describes the minor as "represented by David Leonard as guardian of said minor, and is a party of interest which has or will suffer damages from injuries and the cause of action herein stated." See id. He also describes the minor as his step-child. See id. at 42, ¶ 148.

Among the damages sought by plaintiff are third party damages, sought on behalf of losses suffered by plaintiff's family and his family businesses (see Doc. No. 1 at 45-46, ΒΆΒΆ 12-13). In addition, plaintiff seeks injunctive relief in the form of an order directing defendants, among other things, to provide adequate and ...


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