United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
a former state prisoner proceeding pro se, 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.
Plaintiff has consented to the jurisdiction of the
undersigned magistrate judge for all purposes pursuant to 28
U.S.C. § 636(c) and Local Rule 305(a). ECF No. 8.
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF No. 11. Accordingly, the
request to proceed in forma pauperis will be granted.
Statutory Screening of Prisoner Complaints
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).
“is [legally] frivolous where 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).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) 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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (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.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
' 1216 (3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S.
at 570). “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. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hosp. Bldg.
Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well
as 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
complaint alleges that defendants Fox, Collins, Bick,
Ditomas, Saukhla, Jensen, Sanders, Omar, and Lewis denied
plaintiff necessary medical care in violation of his Eighth
Amendment rights. ECF No. 1 at 2-3. Plaintiff suffers from
and has a family history of cardiovascular disease and has
two stents in his chest. Id. at 3. Plaintiff alleges
that during his confinement he suffered from chest pains and
went “man down” due to chest pains on a number of
occasions. Id. at 3-4. In response, defendants
failed to provide medication to control or treat his chest
pains, failed to provide appropriate diagnostic testing, and
failed to provide proper treatment, including sending him to
a specialist, despite the fact that he kept experiencing
chest pains. Id.
maintain an Eighth Amendment claim based on prison medical
treatment, an inmate must show ‘deliberate indifference
to serious medical needs.'” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This
requires plaintiff to show (1) “a ‘serious
medical need' by demonstrating that ‘failure to
treat a prisoner's condition could result in further
significant injury or the unnecessary and wanton infliction
of pain, '” and (2) “the defendant's
response to the ...