United States District Court, E.D. California
AMENDED ORDER 
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action under 42 U.S.C. § 1983.
Plaintiff alleges that the water at “Tracy
Medical” was contaminated, which posed a dangerous risk
to his immune system as an AIDS patient. (ECF No. 1 at 3.)
Furthermore, plaintiff alleges that defendant Lopez, a
correctional officer on the third watch, was responsible for
plaintiff being assigned to the third tier of the prison,
which posed a dangerous risk to him because he had pins and
screws in his left knee and took psychiatric medication.
(Id. at 2) Before the court are plaintiff's
application to proceed in forma pauperis (ECF Nos. 2; 5) and
the screening of plaintiff's complaint. Plaintiff has
consented to the jurisdiction of a magistrate judge. (ECF No.
4.) For the reasons set forth below, the court grants
plaintiff's motion to proceed in forma pauperis and
dismisses plaintiff's complaint with leave to amend.
Motion to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). (ECF Nos. 2; 5.) 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).
Plaintiff is currently without funds. Accordingly, the court
will not assess an initial partial filing fee. 28 U.S.C.
§ 1915(b)(1). Plaintiff is obligated for monthly
payments of twenty percent of the preceding month's
income credited to plaintiff's prison trust account.
These payments shall be collected and 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 an officer or
employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).
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.
considering whether a complaint states a claim upon which
relief can be granted, the court must accept the allegations
as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and construe the complaint in the light most favorable to the
plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236
pleadings are held to a less stringent standard than those
drafted by lawyers. See Haines v. Kerner, 404 U.S.
519, 520 (1972). Still, to survive dismissal for failure to
state a claim, a pro se complaint must contain more than
“naked assertions, ” “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
a claim upon which the court can grant relief must have
facial plausibility. Twombly, 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.” Iqbal, 556 U.S. at 678.
Attachments to a complaint are considered to be part of the
complaint for purposes of a motion to dismiss for failure to
state a claim. Hal Roach Studios v. Richard Feiner &
Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
complaint appears to make two claims against two defendants.
A claim for inadequate medical care by the
“doctor” at DVI, as well as a deliberate
indifference claims against correctional officer Lopez at
DVI. (ECF No. 1 at 2-3.) For the reasons outlined below, the
court dismisses the complaint for failure to state a