United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding pro se and in forma pauperis,
with an action filed pursuant to 42 U.S.C. § 1983.
Plaintiff consented to proceed before the undersigned for all
purposes. See 28 U.S.C. § 636(c).
Plaintiff's complaint was dismissed with leave to file an
amended complaint. Plaintiff has now filed an amended
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1989), superseded by statute as stated in Lopez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).
again names as defendants the California Department of
Corrections and Rehabilitation (“CDCR”) and the
California Correctional Health Care Services
(“CCHCS”). As plaintiff was previously advised,
these are not proper defendants. State agencies, such as the
CDCR, and CCHCS, 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 are dismissed.
Plaintiff's Amended Complaint
claims that his first doctor advised plaintiff that he had a
mild heart attack and that he needed surgery, which is noted
in his medical files. Plaintiff contends that defendant Dr.
Griffith failed to provide plaintiff with stronger pain
medications and surgery. Plaintiff claims that Dr. Griffith
and Dr. Kelley are failing to follow other doctors'
orders to provide plaintiff surgery. Plaintiff states that he
has sought a second opinion “to clarify what the doctor
said about needing surgery, ” but that Dr. Griffith and
Dr. Kelley insist that plaintiff must pay for any second
opinion. As injury, plaintiff claims his heart hurts
“very strongly, ” and that he is stressed because
he fears he will have a heart attack. Plaintiff contends that
these defendant doctors are not following his first
doctor's orders, and are interfering with his medical
care. In addition to monetary damages, plaintiff seeks an MRI
and a second opinion with non-CDCR doctors as to whether
heart surgery is required.
Eighth Amendment protects prisoners from inhumane methods of
punishment and inhumane conditions of confinement. Morgan
v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).
Extreme deprivations are required to make out a
conditions-of-confinement claim, and “only those
deprivations denying the minimal civilized measure of
life's necessities are sufficiently grave to form the
basis of an Eighth Amendment violation.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (citation omitted).
“Prison officials have a duty to ensure that prisoners
are provided adequate shelter, food, clothing, sanitation,
medical care, and personal safety.” Johnson v.
Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citations
omitted). “The circumstances, nature, and duration of a
deprivation of these necessities must be considered in
determining whether a constitutional violation has
occurred.” Id. “The more basic the need,
the shorter the time it can be withheld.” Id.
prevail on an Eighth Amendment claim predicated on the denial
of medical care, a plaintiff must show that: (1) he had a
serious medical need; and (2) the defendant's response to
the need was deliberately indifferent. Jett v.
Penner, 439 F.3d 1091, ...