Branscomb v. Estes

Filing 11

ORDER DISMISSING Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Stanley A. Boone on 11/18/2013. Amended Complaint : (30) Day Deadline (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KERRY BRANSCOMB,

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Plaintiff,
v.
CHRISTOPHER ESTES,
Defendant.

Case No. 1:13-cv-01257-AWI-SAB
ORDER DISMISSING FIRST AMENDED
COMPLAINT, WITH LEAVE TO AMEND, FOR
FAILURE TO STATE A CLAIM
(ECF No. 9)
THIRTY-DAY DEADLINE

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I.

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INTRODUCTION

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Plaintiff Kerry Branscomb, a state prisoner proceeding pro se, filed a complaint in this

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action on August 12, 2013. (ECF No. 1.) On August 26, 2013, the undersigned screened the

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complaint and issued an order issued finding Plaintiff had failed to state any cognizable claims

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and directing Plaintiff to file an amended complaint within thirty days. (ECF No. 4.)

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After Plaintiff failed to file an amended complaint, a findings and recommendation issued

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recommending dismissing this action for failure to state a claim on October 4, 2013. (ECF No.

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5.) Plaintiff filed objections to the findings and recommendation on October 21, 2013. (ECF No.

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7.) On October 3, 2013, District Judge Anthony W. Ishii issued an order adopting in part the

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findings and recommendations. The order adopting dismissed Plaintiff’s claims based upon his

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criminal conviction without leave to amend, Defendant Estes was dismissed from the action, and
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Plaintiff was granted thirty days in which to file an amended complaint setting forth his Eight

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Amendment claims. (ECF No. 8.) On November 14, 2013, Plaintiff filed a first amended

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complaint. (ECF No. 9.)

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For the reasons discussed below, Plaintiff has failed to state a cognizable claim under

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section 1983. Plaintiff shall be granted one final opportunity to file an amended complaint to cure

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the defects in his Eighth Amendment claim.

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II.

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SCREENING REQUIREMENT

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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 on which relief may be granted,” or that

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“seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate

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that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant

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has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s
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liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d

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at 969.

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III.

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DISCUSSION

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In his first amended complaint, Plaintiff is again attempting to challenge his conviction.

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Plaintiff is again advised that it has long been established that state prisoners cannot challenge the

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fact or duration of their confinement in a section 1983 action and their sole remedy lies in habeas

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corpus relief.

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ineffective assistance of counsel may not be raised in section 1983 action. The appropriate

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Wilkinson v. Dotson, 544 U.S. 74, 78 (2005).

Plaintiff’s claims regarding

remedy is for Plaintiff to file a writ of habeas corpus.

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Plaintiff alleges that his public defender Banton was aware of his condition and used it to

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the fullest. (First Am. Compl. 3, ECF No. 10.) Section 1983 provides a cause of action for the

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violation of Plaintiff’s constitutional or other federal rights by persons acting under color of state

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law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles,

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442 F.3d 1178, 1185 (9th Cir. 2006). As Plaintiff was previously advised, it is well established

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that court appointed attorneys are not state actors. Polk v. Dodson, 454 U.S. 312, 325 (1981).

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Plaintiff complains that while he was in court the judge told him to shut up and raised his

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bail to $150,000.00. (ECF No. 9 at 2.) Again, Plaintiff has previously been advised that judges

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and those who perform “judge-like functions are absolutely immune from damage liability for

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acts performed in their official capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.

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1986). Judicial immunity applies even if the judicial officer “takes actions which are in error, are

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done maliciously, or are in excess of his authority.” Meek v. County of Riverside, 183 F.3d 962,

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965 (9th Cir. 1999). The judge who set Plaintiff’s bail was acting in his judicial capacity and is

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entitled to absolute immunity.

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Plaintiff states that he has “severe corpal tunnel – C.O.P.D. and Asthema – Seizures –

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Severe Depression – 3 Attempts of Suicide.” (ECF No. 9 at 6.) Plaintiff alleges that Drs. Yinn

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and Sims at the California Correctional Institute have told him that certain ailments cannot be

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handled by the California Department of Corrections. (Id. at 3.) In order to state a claim for a
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violation of the Eighth Amendment based upon prison medical treatment, Plaintiff must allege

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sufficient facts to show that the defendant acted with “deliberate indifference to serious medical

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needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429

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U.S. 97, 104, 97 S. Ct. 285, 291 (1976)). The two part test for deliberate indifference requires the

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plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s

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condition could result in further significant injury or the ‘unnecessary and wanton infliction of

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pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d

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at 1096; Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

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A prison official does not act in a deliberately indifferent manner unless the official

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“knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511

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U.S. 825, 834, 114 S.Ct. 1970 (1994). Plaintiff has failed to set forth factual allegations to show

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that any prison official is aware that there is an excessive risk to Plaintiff’s health. Plaintiff fails

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to state a cognizable claim for a violation of the Eighth Amendment.

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Plaintiff has only been granted leave to amend his complaint to perfect his allegations

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regarding prison medical care. Plaintiff is further advised that in order to state a claim based

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upon prison medical care, he must allege facts to show that each named defendant was aware that

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Plaintiff was at a risk of serious injury or harm; and Plaintiff must link each named defendant

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with some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights.

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Plaintiff is referred to the order issued August 28, 2013 for further legal standards that apply to

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his Eighth Amendment claim.

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IV.

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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 leave to file a second amended

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

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

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s second amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state
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what each named defendant did that led to the deprivation of Plaintiff’s constitutional or other

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federal rights, Iqbal, 129 S. Ct. at 1948-49. “The inquiry into causation must be individualized

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and focus on the duties and responsibilities of each individual defendant whose acts or omissions

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are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th

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Cir. 1988). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana,

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

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must be “complete in itself without reference to the prior or superseded pleading,” Local Rule

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220.

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Based on the foregoing, it is HEREBY ORDERED that:

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

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2.

Plaintiff’s complaint, filed November 14, 2013, is dismissed for failure to state a

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claim upon which relief may be granted under section 1983;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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second amended complaint to cure the deficiencies in his Eighth Amendment

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claim; and

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4.

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

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IT IS SO ORDERED.
Dated:

November 18, 2013
UNITED STATES MAGISTRATE JUDGE

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