(PC) Arceo v. Smith et al

Filing 17

ORDER signed by Magistrate Judge Gary S. Austin on 12/8/2011 DISMISSING CASE WITH LEAVE TO AMEND. Amended Complaint due by 1/12/2012. (Attachments: #1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY ARCEO,

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Plaintiff,

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CASE NO. 1:10-cv-00427 GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS

v.
DR. SMITH, et al.,

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(ECF No. 1)
Defendants.
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Screening Order
I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c)(1).

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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 fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.

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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to 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).

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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the

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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading

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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257

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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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II.

Plaintiff’s Claims

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The events at issue in this action occurred at the Sierra Conservation Center in Jamestown,

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where Plaintiff is currently incarcerated. Plaintiff names as defendants the following individuals:

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Dr. Smith, M.D.; Dr. Imperial, M.D.; Dr. Krpan, M.D.; Dr. Allen, M.D.; Dr. St. Clair, M.D. F.

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Chavez; Susan Hubbard.

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Plaintiff’s complaint is 49 pages long and sets forth claims regarding the conditions of

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Plaintiff’s confinement. Although not alleged as discrete and separate claims, the narrative of

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Plaintiff’s complaint reveals claims of inadequate medical care, discrimination, visitation, religious

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freedom, and claims under the Americans with Disabilities Act (ADA).

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A.

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Pursuant to Federal Rule of Civil Procedure 18(a), “A party asserting a claim to relief as an

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original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or

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alternate claims, as many claims, legal equitable, or maritime, as the party has against an opposing

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party.” Thus multiple claims against a single party are permissible, but Claim A against Defendant

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1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against

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different defendants belong in different suits, not only to prevent the sort of morass (a multiple claim,

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multiple defendant) suit produces, but also to ensure that prisoners pay the required filing fees. The

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Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner

Rule 18

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may file without the prepayment of the required fees. 28 U.S.C. § 1915(g). George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007).

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Plaintiff’s complaint is voluminous and includes multiple unrelated claims against differing

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defendants. While it appears that Plaintiff may be able to state at least one cognizable claim, he

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clearly violates Rule 18(a) by including multiple unrelated claims in this single filing. Plaintiff will

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be given an opportunity to file a first amended complaint under this case number, wherein he is

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directed to plead/allege only related claims. All unrelated claims should be brought in separate suits.

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Plaintiff is advised that if he chooses to file a first amended complaint, and fails to comply with Rule

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18(a), the Court will count all frivolous/noncognizable unrelated claims that are dismissed as strikes,

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such that Plaintiff may be barred from filing in forma pauperis in the future.

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B.

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Plaintiff’s claims appear to stem from his allegations of violations of the ADA, which

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“prohibit[s] discrimination on the basis of disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th

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Cir. 2002). “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a

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qualified individual with a disability; (2) [he] was excluded from participation in or otherwise

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discriminated against with regard to a public entity’s services, programs, or activities; and (3) such

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exclusion or discrimination was by reason of [his] disability.” Lovell, 303 F.3d at 1052.

ADA Claim

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Plaintiff has not alleged any facts with support a claim for violation of the ADA. The bulk

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of Plaintiff’s allegations relate to his treatment for HCV. The treatment or lack of medical treatment

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for Plaintiff’s condition does not provide a basis upon which to impose liability. Burger v.

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Bloomberg, 418 F.3d 882 (8th Cir. 2005) (medical treatment decisions not basis for ADA claims);

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Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical decisions not

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ordinarily within the scope of the ADA); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The

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ADA does not create a remedy for medical malpractice.”). Aside from Defendants’ medical

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treatment decisions of which Plaintiff complains and which are not an appropriate basis upon which

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to predicate an ADA claim, Plaintiff alleges no facts to show that any named Defendant participated

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in, or was otherwise responsible for, excluding him from numerous activities, programs, and benefits

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otherwise available to him. Therefore, Plaintiff fails to state a cognizable claim for violation of his
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rights under Title II of the ADA.

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III.

Conclusion and Order

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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon

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which relief may be granted under section 1983 or the ADA. The Court will provide Plaintiff with

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the opportunity to file an amended complaint curing the deficiencies identified by the Court in this

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he 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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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567 (citing

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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at

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1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;

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2.

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

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3.

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

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amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended

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complaint and any attempt to do so will result in an order striking the amended

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complaint; and
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5.

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If Plaintiff fails to file an amended complaint, the Court will dismiss this action, with
prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:
6i0kij

December 8, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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