Zapata v. Holzboog et al

Filing 7

ORDER dismissing Complaint with leave to amend signed by District Judge G. Murray Snow on 4/7/2009. ( Amended Complaint due by 5/11/2009). (Attachments: # 1 complaint form)(Lundstrom, T)

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

Mario C. Zapata, Plaintiff, vs. D . Holzboog, et al., Defendants.

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N o . CV 1-08-672-GMS ORDER

P lain tiff Mario C. Zapata, who is confined in the Avenal State Prison (ASP) in A v e n a l, California, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (D o c . # 1). This case was reassigned to the undersigned judge on November 25, 2008 (Doc. # 6). The Court will dismiss the Complaint with leave to amend. I. Statutory Screening of Prisoner Complaints T h e Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised c la im s that are legally frivolous or malicious, that fail to state a claim upon which relief may b e granted, or that seek monetary relief from a defendant who is immune from such relief. 2 8 U.S.C. § 1915A(b)(1), (2). The Court should not, however, advise the litigant how to cure the defects. This type o f advice "would undermine district judges' role as impartial decisionmakers." Pliler v.

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F o r d , 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide w h e th e r the court was required to inform a litigant of deficiencies). Plaintiff's Complaint w ill be dismissed for failure to state a claim, with leave to amend because the Complaint may p o ss ib ly be saved by amendment. II. C o m p l a in t In his Complaint, Plaintiff sues the following Defendants: (1) ASP Correctional O f f ic e r (CO) D. Holzboog; (2) ASP CO G. Flores; (3) ASP CO Sedano; ASP Correctional S e rg e a n t E. Alfaro; ASP Warden Kathy Mendoza-Powers; ASP Correctional Captain S. P e n n yw e ll; Director of Adult Institutions; California Governor Arnold Schwarzenegger; and S e c re ta ry of Corrections James Tilton. P la in tif f alleges that Holzboog, Flores, Sedano, Alfaro, Pennywell, and MendozaP o w e rs have allowed numerous assaults in housing unit 650, allowed the housing units to be s e v e re ly overcrowded and understaffed, allowed staff corruption, allowed inmates to control th e housing units, failed to control tools (e.g. canes) that can be used as weapons, allowed s ta f f to set up, encourage, and condone attacks on disabled inmates like Plaintiff, have failed to protect Plaintiff, have fostered a hostile environment, have allowed predatory inmates to b e housed in open housing units, have allwed retaliation, and have opposed Plaintiff's tr a n s f e r. Plaintiff further alleges that Tilton, Director of Adult Institutions, and

S c h w a rz e n eg g e r have allowed the above conduct to continue and have not disciplined the o t h e r Defendants. II I. F a ilu r e to State a Claim A. F a i lu r e to Link Defendants with Injuries

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 5 2 0 -2 1 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. B o ard of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the c la im that were not initially pled. Id.

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T o state a valid claim under § 1983, plaintiffs must allege that they suffered a specific in ju ry as a result of specific conduct of a defendant and show an affirmative link between the in ju ry and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 ( 1 9 7 6 ) . To state a claim against a supervisory official, the civil rights complainant must a lle g e that the supervisory official personally participated in the constitutional deprivation o r that the supervisory official was aware of widespread abuses and, with deliberate in d if f ere n c e to the inmate's constitutional rights, failed to take action to prevent further m is c o n d u c t. See Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996); Taylor, 880 F .2 d at 1045; King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); see also Monell v. New Y o rk City Department of Social Services, 436 U.S. 658, 691-92 (1978). There is no r e sp o n d e a t superior liability under § 1983, and therefore, a defendant's position as the s u p e r v is o r of persons who allegedly violated Plaintiff's constitutional rights does not impose lia b ility. Monell, 436 U.S. at 691-92; Taylor, 880 F.2d at 1045. P la in tif f has not articulated any specific conduct on behalf of any Defendant. Indeed, P la in tif f makes only vague and conclusory allegations about the unconstitutional conditions o f confinement at the ASP. Plaintiff must allege with specificity what each Defendant did th a t was violative of Plaintiff's constitutional rights. For this reason, the Court will dismiss P la in tif f 's Complaint with leave to amend. B. F a ilu r e to Allege Facts Supporting a Constitutional Violation

P la in t if f ' s Complaint also speaks generally about the conditions at the ASP. In a first a m en d e d complaint, Plaintiff must allege facts to support how Plaintiff's constitutional rights h a v e specifically been violated. IV. L e a v e to Amend F o r the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first am en d ed complaint on the form provided with this Order. If Plaintiff fails to use the form p ro v id e d with this Order, the Court may strike the amended complaint and dismiss this action w ith o u t further notice to Plaintiff. -3-

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P la in t if f must clearly designate on the face of the document that it is the "First A m e n d e d Complaint." The amended complaint must be retyped or rewritten in its entirety o n the form provided with this Order and may not incorporate any part of the original C o m p la in t by reference. P lain tiff must comply with the instructions provided with the form. Plaintiff should p a y close attention to the instructions provided with the form. If Plaintiff fails to comply w ith the instructions provided with the form, the Court may strike the amended complaint a n d dismiss this action without further notice to Plaintiff. Among other requirements contained in the instructions, Plaintiff is advised that the in s tru c tio n s require him to provide information regarding the Court's jurisdiction, provide in f o rm a tio n about the defendants, and divide his lawsuit into separate counts. In each count, P la in tif f must identify what federal constitutional civil right was violated, identify the issue m o s t closely involved in that count, state which defendants violated that right and what those d e f en d a n ts did to violate that right, explain how Plaintiff was injured by the alleged violation o f the constitutional right, and identify whether Plaintiff has exhausted any available a d m i n is tra tiv e remedies. Plaintiff must repeat this process for each civil right that was v io la te d . Plaintiff may allege only one claim per count. A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F .2 d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1 5 4 6 (9th Cir. 1990). After amendment, the Court will treat an original complaint as n o n e x is te n t. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original c o m p l a in t is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 5 6 5 , 567 (9th Cir. 1987). V. W a r n in g s A. A d d r e s s Changes

P lain tiff must file and serve a notice of a change of address in accordance with Rule 8 3 -1 8 2 (f ) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include

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a motion for other relief with a notice of change of address. Failure to comply may result in d is m is s a l of this action. B. Copies

P la in tif f must submit an additional copy of every filing for use by the Court. See L R C iv 5-133(d)(2). Failure to comply may result in the filing being stricken without further n o tic e to Plaintiff. C. Possible Dismissal

I f Plaintiff fails to timely comply with every provision of this Order, including these w a rn in g s, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 9 6 3 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to co m p ly with any order of the Court). IT IS ORDERED: (1) T h e Complaint (Doc. # 1) is dismissed for failure to state a claim. Plaintiff has

3 0 days from the date this Order is filed to file a first amended complaint in compliance with this Order. (2 ) If Plaintiff fails to file a first amended complaint within 30 days, the Clerk of

C o u rt must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g). (3 ) T h e Clerk of Court must include with this Order a copy of this judge's required

fo rm for filing a civil rights complaint by a prisoner. D A T E D this 7th day of April, 2009.

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