Opinion
No. CIV S-06-2340 ALA P.
August 16, 2007
ORDER
Plaintiff Reginald Smith is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Mr. Smith has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). See Docket No. 2. Accordingly, his request to proceed in forma pauperis will be granted.
Mr. Smith is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $0.00 will be assessed by this order. 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 Mr. Smith's trust account and forward it to the Clerk of the Court. Thereafter, Mr. Smith will be obligated for monthly payments of twenty percent of the preceding month's income credited to his prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in his account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
Mr. Smith's trust fund account statement shows that, in the six-month period preceding the filing of his Complaint, no deposits were made into his prison trust fund account and the account at all times had a zero or negative balance. See Docket No. 2.
Under 28 U.S.C. § 1915A, this Court must "review, before docketing . . . or . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court [must] identify cognizable claims or dismiss . . . any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). This Court must therefore determine whether Mr. Smith's Complaint states a cognizable claim for relief with respect to each named defendant.
The Court has reviewed Mr. Smith's Complaint and determined that it states cognizable claims for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) against defendants Castrillo and McMasters. According to the Complaint, defendants Castrillo and McMasters "had [Mr. Smith] escorted out of the [prison] Clinic" when he attempted to complain to them about severe stomach pain. Complaint at 3. If that allegation is proven, Mr. Smith has a reasonable opportunity to prevail against defendants Castrillo and McMasters on the merits of his action.
Mr. Smith's Complaint does not, however, state cognizable claims for relief against named defendants Grannis, Naku, Traquina, or Jessup. The basis of the Complaint is that prison doctors and officials acted with deliberate indifference towards Mr. Smith by delaying and denying treatment for scabs and sores on his scalp and pain in his stomach. The Complaint's only mention of Dr. Grannis is its allegation that Dr. Grannis issued an order on June 14, 2004 directing "[t]he CTF Health Care Manager (HCM) [to] ensure that [Mr. Smith's] minor surgery for scalp lesions is promptly completed as determined to be medically necessary." Exhibit to Complaint. That allegation does not suggest deliberate indifference. Dr. Naku, similarly, is mentioned only once: the Complaint states merely that Dr. Naku "provided [Mr. Smith] with antibiotics to combat [an] infection" in his stomach. Complaint at 3. That sentence does not allege deliberate indifference by Dr. Naku. The Complaint alleges no conduct at all on the part of defendants Traquina and Jessup.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of $0.00. All fees 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 is appropriate for the following defendants:
a. MTA Castrillo
b. MTA McMasters.
4. The Clerk of the Court shall send plaintiff two (2) USM-285 forms, one summons, an instruction sheet and a copy of the complaint filed October 24, 2006.
5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 3 above; and
d. Three (3) copies of the endorsed complaint filed October 24, 2006.
6. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
7. Plaintiff's Complaint is DISMISSED without prejudice as to Defendants Grannis, Naku, Traquina, and Jessup. Plaintiff is granted thirty (30) days from the date of this order to file an Amended Complaint asserting cognizable claims for relief against those defendants.