Opinion
No. CIV S-09-1513 EFB P.
February 22, 2010
ORDER
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff's declaration makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).
The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states a cognizable Eight Amendment claim against defendant Anguzza. See 28 U.S.C. § 1915A.
The complaint does not state a cognizable claim against defendant Department of Corrections, as the Department of Corrections is not a "person" under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); see also Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (state agency such as San Quentin State Prison is not a person within meaning of Civil Rights Act). This defect in plaintiff's claim cannot be cured by amendment, thus, plaintiff is not entitled to leave to amend to state a claim against the Department of Corrections.
Accordingly, it hereby is ORDERED that:
1. Plaintiff's request to proceed in forma pauperis is granted.
2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Service is appropriate for defendant Anguzza.
4. Plaintiff's claims against defendant California Department of Corrections are dismissed without leave to amend.
5. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and one copy of the June 2, 2009 pleading.
6. Within 30 days from service of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit it to the court with the completed summons and USM-285 form and two copies of the endorsed June 2, 2009 pleading.
7. Upon receipt of the necessary materials, the court will direct the United States Marshal to serve defendant Anguzza pursuant to Federal Rule of Civil Procedure 4 without payment of costs. Failure to comply with this order may result in this action being dismissed.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed _____________:1 1 2
completed summons form completed forms USM-285 copies of the June 2, 2009 Complaint Dated: ____________________________ Plaintiff