Opinion
No. CIV S-07-2408 WBS DAD P.
November 13, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 72-302 and 28 U.S.C. § 636(b)(1).
Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. § 1914(a) 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will 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. See 28 U.S.C. § 1915(b)(2).
Plaintiff's complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) as to defendant Winsauer. If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. The court will not, however, order service on California State Prison — Solano, the California Department of Corrections and Rehabilitation, or the State of California.
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 prison facility and Department are not proper defendants in a civil rights action. See Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (state agencies are not "person[s]" for purposes of the Civil Rights Act); Bennett v. California, 406 F.2d 36, 39 (9th Cir. 1969) ("[S]tate agencies that are but arms of the state government, are not 'persons' within the meaning of the Civil Rights Act."). The State of California is also not a "person" and not a proper party in this action. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989); Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's November 8, 2007 application to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Service of the complaint is appropriate for defendant correctional officer Winsauer.
4. The Clerk of the Court shall send plaintiff one USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed November 8, 2007.
5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:
a. The completed, signed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for defendant Winsauer; and
d. Two copies of the endorsed complaint filed November 8, 2007.
6. Plaintiff shall not attempt to effect service of the complaint on defendant or request a waiver of service of summons from defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.