United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims defendants have failed to provide him with
adequate medical treatment and have handled his
administrative appeals improperly. Presently before the court
is plaintiff's fourth amended complaint (ECF No. 45) for
screening. For the reasons set forth below the court will
recommend that the complaint be dismissed without leave to
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 Franklin, 745 F.2d at 1227. Rule 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.” Bell
Atlantic, 550 U.S. at 555. 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 Hospital Trustees, 425 U.S. 738, 740 (1976),
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
Civil Rights Act under which this action was filed provides
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. Dept. of Social Servs.,
436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
(1976). “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).
supervisory personnel are generally not liable under §
1983 for the actions of their employees under a theory of
respondeat superior and, therefore, when a named defendant
holds a supervisorial position, the causal link between him
and the claimed constitutional violation must be specifically
alleged. See Fayle v. Stapley, 607 F.2d 858, 862
(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438,
441 (9th Cir. 1978). Vague and conclusory allegations
concerning the involvement of official personnel in civil
rights violations are not sufficient. See Ivey v. Board
of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Allegations in the Fourth Amended Complaint
has named as defendants in this action: (1) California
Department of Corrections and Rehabilitation (CDCR), Director
Diaz; (2) M. Voong; (3) Kamela Harris; (4) Gavin Newsom; (5)
Dr. Ma; (6) Dr. Mogadam; (7) and CDCR medical. (ECF No. 45 at
claims his due process rights were violated because
“the director of Ca[lifornia] State prisons allows
medical to distribute un authorized controlled substance
Kenalog.” (Id. at 3.) It appears plaintiff
claims that he was prescribed a 40ml ...