United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. In addition to filing a
complaint (ECF No. 1), plaintiff has filed an application to
proceed in forma pauperis under 28 U.S.C. § 1915. ECF
Application to Proceed In Forma Pauperis
court has reviewed plaintiff's application and finds that
it makes the showing required by 28 U.S.C. § 1915(a)(1)
and (2). Accordingly, by separate order, the court directs
the agency having custody of plaintiff to collect and forward
the appropriate monthly payments for the filing fee as set
forth in 28 U.S.C. § 1915(b)(1) and (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 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and internal quotations omitted), superseded by statute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, Hospital
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 (1969).
alleges that the California Department of Corrections and
Rehabilitation (CDCR) failed to act in time to prevent him
from contracting a fungal infection known as “Valley
Fever.” ECF No. 1 at 3. He has also sued California
Governor Jerry Brown. Id. at 2. Plaintiff has
failed, however, to allege how either of these defendants
actually violated his rights. He does not allege how either
was specifically responsible for his infection. Additionally,
the CDCR is not a viable defendant because it is not a
“person” within the meaning of section 1983.
See Howlett v. Rose, 496 U.S. 356, 365 (1990).
Finally, plaintiff is cautioned that any suit against
Governor Brown cannot succeed based solely on his position as
the overall superior to CDCR officials. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989) (no respondeat
superior liability under Section 1983).
on the foregoing, plaintiff's complaint will be dismissed
and he will be given leave to amend.
Leave to Amend
complaint is dismissed with leave to amend. If plaintiff
chooses to file an amended ...