Banuelos v. Weiss

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         IN FORMA PAUPERIS

         Plaintiff 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.

         Plaintiff 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).

         SCREENING

         I. Legal Standards

         The 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).

         A claim 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)).

         However, 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 (1969).

         The Civil Rights Act under which this action was filed provides as follows:

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).

         II. Analysis

         A. Allegations of the Complaint

         Plaintiff 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.

         Plaintiff 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 at 8.)

         In his 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.

         Plaintiff seeks a “proper and complete PREA investigation, ” to be assigned a different primary care physician, and damages.

         B. Does Plaintiff State ...