United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with a civil rights
action under 42 U.S.C. § 1983. Before the court are
plaintiff's motion to proceed in forma pauperis and
plaintiff's complaint for screening. For the reasons set
forth below, this court grants plaintiff's motion to
proceed in forma pauperis, finds plaintiff has stated a
cognizable claim, and gives plaintiff an opportunity to
either amend his complaint or proceed on the cognizable claim
in his current complaint. In addition, this court recommends
some claims be dismissed.
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). 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). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be 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 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).
Allegations of the Complaint
complains of conduct that occurred at Mule Creek State Prison
(“MCSP”) where he is currently incarcerated.
Plaintiff identifies two defendants: Dr. R. Weiss and MCSP.
states that defendant Weiss is his primary care physician at
MCSP. Plaintiff appears to be raising three claims. First, he
alleges that on December 4, 2018 and January 30, 2019,
defendant Weiss “cancelled plaintiff's medical and
ADA chronos, and medications that were given to plaintiff
after surgeries for Arnold-Chiara Malformation.” In
addition, plaintiff alleges Weiss cancelled plaintiff's
diabetes medication without explanation even though
plaintiff's “A1C remained high.” (ECF No. 1
second claim, plaintiff alleges he was seen by Weiss on
February 4, 2019 for a lump in his groin. Plaintiff claims
that Weiss “fondle[d]” his genitals on the left
side even though plaintiff informed Weiss that the lump was
on the right side. Plaintiff asked Weiss several times to
stop. Weiss ignored him. Plaintiff then placed his hands over
his genitals, but Weiss removed them saying, “I know
what I'm doing.” Finally, plaintiff states that he
filed a staff complaint against Weiss under the federal
Prison Rape Elimination Act (“PREA”). Plaintiff
contends prison authorities never followed the state and
federal law protocols to address his complaint. In addition,
plaintiff contends he is being forced to see Weiss for
medical care despite his complaint of sexual misconduct.
seeks a “proper and complete PREA investigation,
” to be assigned a different primary care physician,
Does Plaintiff State ...