Braley v. Wasco State Prison, et al

Filing 45

ORDER DISMISSING 44 Complaint, WITH LEAVE TO AMEND, for Failure to State a Claim; ORDER DISREGARDING Plaintiff's 40 Motion for Certificate of Appealability; ORDER for Clerk to Serve Copy of this Order on Ninth Circuit; Thirty Day Deadline signed by Magistrate Judge Sandra M. Snyder on 5/9/2011. Second Amended Complaint due by 6/13/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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THOMAS D. BRALEY,

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Plaintiff,

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v.

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WASCO STATE PRISON, et al.,

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Defendants.

CASE NO. 1:07-cv-01423-OWW-SMS
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
STATE A CLAIM
(ECF No. 44)

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ORDER DISREGARDING PLAINTIFF’S
MOTION FOR CERTIFICATE OF
APPEALABILITY

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(ECF No. 40)

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ORDER FOR CLERK TO SERVE COPY OF
THIS ORDER ON NINTH CIRCUIT

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/ THIRTY-DAY DEADLINE
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I.

Screening Requirment

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Plaintiff Thomas D. Braley (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed September

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28, 2007. On April 6, 2011, Plaintiff filed a motion for a certificate of appealability. (ECF No. 40.)

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Currently pending before the Court is the first amended complaint filed April 22, 2011. (ECF No.

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44.)

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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In determining whether a complaint states a claim, the Court looks to the pleading standard

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under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555

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(2007)).

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II.

Discussion

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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and

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is currently incarcerated at Salinas Valley State Prison. In his amended complaint Plaintiff

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summarizes multiple actions he has had proceeding in various courts.

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Under section 1983, Plaintiff is required to show that (1) each defendant acted under color

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of state law and (2) each defendant deprived him of rights secured by the Constitution or federal law.

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Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff must demonstrate

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that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297

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F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability under section 1983, and

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therefore, each defendant is only liable for his or her own misconduct. Iqbal, 129 S. Ct. at 1948-49.

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In this instance, Plaintiff has not sufficiently linked the defendants named in his complaint

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to any acts or omissions that purportedly led to the violation of those rights. For example, Plaintiff

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alleges that on September 19, 2007, he was attacked in his cell while staff looked on from the armed

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tower and did nothing until it was discovered that a sergeant was coming. (Amend. Compl. 6-7, ECF

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No. 44.) Plaintiff was taken to the clinic, but medical staff were not allowed to treat him because

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of all the blood. He requested medical assistance and did not receive treatment until after 10:00 p.m.

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On September 19, 2007, medical staff ordered that x-rays be taken, however they were not taken

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until September 21, 2007. Plaintiff’s broken arm was not placed in a cast until September 25, 2007.

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(Id. at 7.)

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Plaintiff’s assertions do not suffice to show that Plaintiff’s constitutional rights were violated
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by any named defendant. Iqbal, 129 S. Ct. at 1949-50. The allegations contained in the complaint

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do not link any defendant to any act or failure to act that violated his constitutional rights. Iqbal, 129

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S. Ct. at 1949 (“Absent vicarious liability, each Government official, his or her title notwithstanding,

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is only liable for his or her own misconduct.”); Jones, 297 F.3d at 934; George v. Smith, 507 F.3d

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605, 609 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not cause

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or contribute to the violation.”).

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Plaintiff also alleges that since he was transferred on October 12, 2009, he has been deprived

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of his legal property and has been charged with rule violations. (Id. 8-12.) Plaintiff may not raise

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his claims for denial of access to the court in violation of the First Amendment and deprivation of

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Due Process due to rule violation reports here as he could not have exhausted administrative

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remedies prior to the date he filed this action. 42 U.S.C. § 1997e(a). These events occurred after

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2009 and may not be raised in this action which was filed September 28, 2007.

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Plaintiff will be permitted the opportunity to file an amended complaint clarifying the factual

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bases for his claims against each defendant. Plaintiff’s amended complaint need not and should not

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be lengthy, Fed. R. Civ. P. 8(a)(2), but it must specify what each defendant did or did not do that led

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to the violation of Plaintiff’s rights. Conclusory assertions of personal involvement or liability will

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not suffice. Iqbal 129 S. Ct. at 1949-50. Plaintiff is directed to the order dismissing the complaint

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issued August 6, 2009, for the legal standards that appear to apply to his claims. Additionally, the

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legal standard for deliberate indifference to medical needs is set forth below. Plaintiff should

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carefully review the standards and amend only those claims that he believes, in good faith, are

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cognizable.

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Plaintiff is reminded that pursuant to 42 U.S.C. § 1997e(a) all claims brought in this action

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must have been exhausted prior to the date Plaintiff filed this action. Therefore, Plaintiff may not

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bring new claims that occurred after he filed this action in his amended complaint.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show “deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for

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deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by demonstrating
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that failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary

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and wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately

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indifferent.” Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010) (quoting Jett, 439 F.3d at

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1096).

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Deliberate indifference is shown where there was “a purposeful act or failure to respond to

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a prisoner’s pain or possible medical need” and the indifference caused harm. Conn, 591 F.3d at

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1095 (quoting Jett, 439 F.3d at 1096). “Deliberate indifference is a high legal standard.” Simmons

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v. Navajo County, Arizona, 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an

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inference that “a substantial risk of serious harm exists” and he must make the inference. Farmer

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v. Brennan, 511 U.S. 825, 837 (1994).

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III.

Motion for Certificate of Appealability

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Plaintiff filed a motion for a certificate of appealability. Rule 22 of the Federal Rules of

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Appellate Procedure requires that an applicant who files a notice of appeal in a habeas proceeding

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must obtain a certificate of appealability under 28 U.S.C. § 2253(c), or a statement why a certificate

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should not issue, from the district judge who rendered judgment in the action. Fed. R. App. P. 22(b).

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The district clerk must send the certificate or statement to the court of appeals along with the notice

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of appeal. Id. Plaintiff has requested a certificate of appealability for the notice of appeal he filed

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in this action on April 6, 2011. However, Plaintiff’s appeal concerns a civil rights action under §

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1983, not a habeas proceeding. Therefore, Rule 22 does not apply to Plaintiff’s appeal, and

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Plaintiff’s application for a certificate of appealability shall be disregarded. Plaintiff is advised that

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his appeal was processed and forwarded to the Ninth Circuit on April 7, 2011. (ECF No. 42.)

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IV.

Conclusion and Order

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For the reasons stated, Plaintiff’s complaint does not state a cognizable claim for relief for

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a violation of his constitutional rights. Plaintiff is granted one final opportunity to file an amended

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complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may

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not change the nature of this suit by adding new, unrelated claims in his amended complaint.

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George, 507 F.3d at 607 (no “buckshot” complaints).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Iqbal, 129 S. Ct. at 1948-49. “The inquiry into causation must be individualized and focus on the

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duties and responsibilities of each individual defendant whose acts or omissions are alleged to have

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caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although

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accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the

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speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must

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be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th

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Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion for a certificate of appealability is DISREGARDED;

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2.

The Clerk’s Office is DIRECTED to serve a copy of this order on the Ninth Circuit;

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3.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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Plaintiff’s complaint, filed April 22, 2011, is dismissed for failure to state a claim

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upon which relief may be granted under section 1983;

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5.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and

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6.

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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
icido3

May 9, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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