United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding without counsel in this action
brought pursuant to 42 U.S.C. § 1983, seeks leave to
proceed in forma pauperis. ECF No. 2.
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).
Accordingly, plaintiff's request to proceed in forma
pauperis is granted.
to § 1915(e)(2), the court must dismiss the case at any
time if it determines the allegation of poverty is untrue, or
if the action is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against an immune defendant.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
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. 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 (1969). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) “requires a complaint to
include 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.” Twombly, 550 U.S. at
alleges that he was diagnosed as a diabetic in August of 2017
and, as a consequence, required additional provision of snack
foods to manage his blood sugar levels. ECF No. 1 at 3. He
claims that medical staff frequently ignored this necessity
and, on August 16, 2017, he filed a grievance requesting that
this problem be addressed. Id. Plaintiff alleges
that, two or three days after filing his grievance, defendant
Harris (a non-physician member of the medical staff)
approached him and told him that the snacks had now become
“an issue.” Id. at 4. Later that day,
Harris appeared with a large pack of crackers and cheese (a
week's worth of snacks for a diabetic prisoner) and told
plaintiff that he could have the snacks if he consented to
sign an unspecified paper. Id. Plaintiff told Harris
that procedure dictated that he be provided with snacks on a
daily, rather than weekly basis, and he expressed reluctance
to sign the paper Harris held out. Id. Harris
responded by giving him one cracker - a quantity plaintiff
characterizes as half of what he needed - and walking away.
next day, plaintiff saw defendant Crook (another
non-physician member of the medical staff) for administration
of insulin. Id. Crook also gave plaintiff only one
cracker after the appointment. Id. Plaintiff
allegedly told Crook that he was to get two crackers and that
one was insufficient to maintain his blood sugar levels.
Id. He went so far as to show her orders from his
provider indicating that the full snack was medically
necessary. Id. Crook was allegedly steadfast in her
refusal to give plaintiff more than one cracker and directed
a nearby correctional officer to return plaintiff to his
cell. Id. Plaintiff claims that, after their
exchange, he believed that the refusal by Harris and Crook to
provide the full snack amount was retaliation for the
grievance he had previously filed. Id. Later that
evening, plaintiff alleges that he suffered critically low
blood sugar and lost consciousness. Id. Medical
staff were forced to undertake emergency procedures to
prevent him from entering a comatose state. Id. at
court finds that, for screening purposes, plaintiff has
stated a cognizable Eighth Amendment claim for medical
deliberate indifference against defendants Harris and Crook
(employees of California State Prison,
Sacramento). He has also stated a viable First
Amendment claim against both of these
defendants. The court also finds, however, that
plaintiff has failed to plead sufficient allegations to state
a cognizable claim against defendant Felder. Plaintiff
identifies Felder as the Chief Medical Officer at California
State Prison Sacramento - where the foregoing incidents
occurred. Id. at 2. He does not allege that Felder
was personally involved in his care. And there is no
respondeat superior liability under section 1983. See
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Thus, his claims against Felder will be dismissed with
leave to amend.