United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and has requested
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. This proceeding was referred to this court by
Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff consented to proceed before the undersigned for all
purposes. See 28 U.S.C. § 636(c).
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 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 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 trust account.
These payments will be 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. 28 U.S.C. § 1915(b)(2).
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. §
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1989), superseded by statute as stated in Lopez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.
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. at 555. 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, 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,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
claims that he was previously diagnosed with heart issues by
a doctor, but since then, he has asked for heart treatment,
surgery and strong pain medications to endure the pain, but
has been denied these services several times. Plaintiff
claims he has suffered loss of sleep, emotional distress,
mental stress, and many strong chest pains, and has been
denied medication to treat his medical conditions. He states
he is “scared” he is going to “have a heart
attack and end up passing away due to their
negligence.” (ECF No. 1 at 3.) Plaintiff seeks an MRI
and stronger medications, and if the MRI shows a heart
condition, he wants heart surgery. Plaintiff also seeks money
plaintiff has not named a proper defendant. 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 plaintiff. See Monell v. Department of Social
Servs., 436 U.S. 658 (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).
California Department of Corrections and Rehabilitation
(“CDCR”), California Correctional Health Care
Services (“CCHCS”), High Desert State Prison, and
Health Care Appeals office, are not proper defendants. State
agencies, such as the CDCR, CCHCS, HDSP, and the appeals
office, are immune from suit under the Eleventh Amendment.
See Will v. Michigan Dep't of State Police, 491
U.S. 58, 66 (1989); Lucas v. Dep't of Corr., 66
F.3d 245, 248 (9th Cir. 1995) (per curiam) (holding that
prisoner's Eighth Amendment claims against CDCR for
damages and injunctive relief were barred by Eleventh
Amendment immunity); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment
immunity extends to state agencies). Thus, these defendants
names no individual defendant by name. Rather, plaintiff
lists “all Drs. Involved, ” as defendants.
Plaintiff must set forth the name of each doctor plaintiff
alleges violated his constitutional rights. In addition, the
court cannot order service of process on a defendant unless
plaintiff provides the defendant's name.
plaintiff's allegations are too general and insufficient
to demonstrate any individual was deliberately indifferent ...