(PC) Grant v. Lewis et al

Filing 20

ORDER DISMISSING #1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Twenty-One Days signed by Magistrate Judge Sheila K. Oberto on 3/3/2017. (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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TRAVARE MONROE GRANT,

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Plaintiff,

Case No. 1:16-cv-00424-LJO-SKO (PC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
(Doc. 1)

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LEWIS, et al.,
TWENTY-ONE DAY DEADLINE

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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Tavare Monroe Grant, is a civil detainee state proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983 based on incidents that occurred

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while he was a state prisoner, housed at Corcoran State Prison (“CSP”), in Corcoran, California.

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As discussed below, Plaintiff fails to state a cognizable claim upon which relief may be granted

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and the Complaint is DISMISSED with leave to file a first amended complaint.

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B.

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

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

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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Screening Requirement and Standard

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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

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C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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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

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much.

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Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e

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have never held -- and we know of no authority supporting the proposition -- that a pleading may

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be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8,

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and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”).

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678,

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quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth

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Asufficient factual matter, accepted as true, to >state a claim that is plausible on its face.=@ Iqbal,

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556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but

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legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d

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962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).

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If he chooses to file a first amended complaint, Plaintiff should make it as concise as

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possible by stating which of his constitutional rights he believes were violated by each Defendant

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and factual basis for each claim. Plaintiff need not and should not cite legal authority for his

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claims in a first amended complaint as his factual allegations are accepted as true.

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2.

Linkage and Causation

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,

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or causal connection, between each defendant’s actions or omissions and a violation of his federal

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rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);

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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572

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F.3d at 969. 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. Hebbe, 627 F.3d at 342.
DISCUSSION

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Plaintiff’s Allegations

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A.

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Plaintiff is currently incarcerated at California Men’s Colony (“CMC”) in San Luis

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Obispo, California, but his allegations are based on circumstances that allegedly occurred at the

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Corcoran State Prison (“CSP”), in Corcoran, California. Plaintiff names the following prison

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staff as Defendants: Senior Psychologist, Supervisor B. Adam, PhD; CEO Charles E. Young;

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Primary Clinician L. Clausell; and Deputy Director J. Lewis.

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Plaintiff alleges that he is “CCMS level of care” because he suffers auditory hallucinations

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(commanding thoughts) that make him act out bizarre behaviors. (Doc. 1, p. 3.) He requested to

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receive group therapy and was denied by CEO Young and Dr. Adams. (Id.) On September 7,

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2015, Plaintiff admitted himself to a crisis bed because he was suffering from hearing

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commanding voices and suicidal thoughts and tendencies. (Id.) Plaintiff alleges that Dr.

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Clausell “discriminated against my mental illness which amounted to disciplinary punishment

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(sic) process.” (Id.) Plaintiff alleges that Dep. Dir. Lewis’ denial of Plaintiff’s Third Level

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grievance “amounted to [his] mental health needs being discriminated against. . . .” (Id.)

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As discussed in detail below, Plaintiff fails to state any cognizable claims. However, he is

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provided the applicable legal standards for his stated claims and an opportunity to file an

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amended complaint.

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B.

Legal Standards
1.

Deliberate Indifference to Serious Medical Needs

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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a

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prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton

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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir.1997) (en banc))

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants= response to the need was deliberately indifferent.”

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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096

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(quotation marks omitted)).

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As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,

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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s

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hallucinations and “commanding voices” are accepted as a serious medical need.

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As to the second prong, deliberate indifference is “a state of mind more blameworthy than

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negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or

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safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate's claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.

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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison

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official should have been aware of the risk, but was not, then the official has not violated the

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Eighth Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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Plaintiff’s allegations are not cognizable as he fails to show that he medically required

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group therapy as a treatment for his auditory hallucinations of which any of the named

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Defendants were aware and intentionally denied. Plaintiff also fails to show that he was harmed

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by any of the Defendants’ actions. Further, it is apparent from the exhibits attached to the

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Plaintiff’s Complaint that although he was in fact receiving therapy, he nonetheless wanted to be

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allowed to participate in group therapy outside of the presence of correctional personnel. (See

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Doc. 1-1, at pp. 2, 3, 5, 6.) Plaintiff presents no allegations from which to infer that his medical

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care is ineffective because it was given in the presence of correctional staff. Any such inference

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need not be accepted since it is not facially plausible. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at

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969. Further, and particularly important given that Plaintiff was housed in the Secured Housing

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Unit at the time (see Doc. 1-1, pp. 5, 6), deference is to be given “ ‘to correctional officials in the

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context of maintaining security and discipline in the jail.” Harrington v. Scribner, 785 F.3d 1299,

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1307-08 (9th Cir. 2015), quoting Florence v. Bd. of Chosen Freeholders, --- U.S. ---, 132 S.Ct.

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1510, 1515-16 (2012) (citing Turner, 482 U.S. at 89, 107 S.Ct. 2254). Plaintiff fails to state a

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cognizable claim for deliberate indifference to his serious medical needs.

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2.

Equal Protection -- Discrimination

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Plaintiff alleges that Defendants’ actions amounted to discrimination, or that they

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discriminated against him. The Equal Protection Clause requires that persons who are similarly

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situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

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439(1985); Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir.

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2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d

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878, 891 (9th Cir. 2008). To state a claim, Plaintiff must show that Defendants intentionally

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discriminated against him based on his membership in a protected class. Hartmann, 707 F.3d at

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1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003);

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Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005); Lee v. City of Los

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Angeles, 250 F.3d 668, 686 (9th Cir. 2001).

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If the action in question does not involve a suspect classification, a plaintiff may establish

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an equal protection claim by showing that similarly situated individuals were intentionally treated

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differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon

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Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528

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U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch

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Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526

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F.3d 478, 486 (9th Cir. 2008), see also Squaw Valley Development Co. v. Goldberg, 375 F.3d

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936, 944 (9th Cir.2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th

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Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1)

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the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated

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differently from others similarly situated; and (3) there is no rational basis for the difference in

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treatment. Village of Willowbrook, 528 U.S. at 564. To establish a violation of the Equal

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Protection Clause, the prisoner must also present evidence of discriminatory intent. See

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Washington v. Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82; Freeman v.

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Arpio, 125 F.3d 732, 737 (9th Cir. 1997).

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Plaintiff’s Equal Protection claim is not cognizable. Plaintiff fails to state any allegations

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to show his membership in a protected class or that he was intentionally treated differently from

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others similarly situated. Nor does Plaintiff demonstrate any discriminatory intent on the part of

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the named Defendants.

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3.

Inmate Appeals

It appears that Plaintiff intends to grieve the actions of Dr. Adams, CEO Young, and Dep.

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Dir. Lewis for their involvement in the processing and reviewing of his inmate appeals in which

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he attempted to obtain group therapy sessions within his housing unit outside the presence of

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correctional staff.

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The Due Process Clause protects prisoners from being deprived of liberty without due

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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a cause of action for

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deprivation of due process, a plaintiff must first establish the existence of a liberty interest for

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which the protection is sought. AStates may under certain circumstances create liberty interests

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which are protected by the Due Process Clause.@ Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

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Liberty interests created by state law are generally limited to freedom from restraint which

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Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of

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prison life.@ Sandin, 515 U.S. at 484.

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A[A prison] grievance procedure is a procedural right only, it does not confer any

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substantive right upon the inmates.@ Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing

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Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d

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850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a

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specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of

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grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640

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(9th Cir. 1988). AHence, it does not give rise to a protected liberty interest requiring the

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procedural protections envisioned by the Fourteenth Amendment.@ Azeez v. DeRobertis, 568 F.

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Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing prisoner=s administrative appeal cannot serve as the basis for liability

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under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a

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violation of the Constitution, and fails to cure it, has violated the Constitution himself is not

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correct. AOnly persons who cause or participate in the violations are responsible. Ruling against

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a prisoner on an administrative complaint does not cause or contribute to the violation. A guard

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who stands and watches while another guard beats a prisoner violates the Constitution; a guard

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who rejects an administrative complaint about a completed act of misconduct does not.@ George

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v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645, 656-57 (7th

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Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987,

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992-93 (7th Cir.1996).

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Further, at least one Appellate Circuit has held that A[o]nce a [non-medical] prison

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grievance examiner becomes aware of potential mistreatment, the Eight Amendment does not

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require him or her to do more than >review [the prisoner=s] complaints and verif[y] with the

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medical officials that [the prisoner] was receiving treatment.@ Greeno, 414 F.3d at 656 citing

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Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004) (non-physician defendants cannot Abe

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considered deliberately indifferent simply because they failed to respond directly to the medical

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complaints of a prisoner who was already being treated by the prison doctor@ and if Aa prisoner is

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under the care of medical experts . . . a non-medical prison official will generally be justified in

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believing that the prisoner is in capable hands.@) This Court concurs with the analysis in Greeno

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and Spruill. Non-medical prison personnel and lower medical staff, such as nurses and/or

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medical technicians, cannot be held liable for their involvement in processing and/or ruling on

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inmate appeals for medical issues where the inmate is under the care of a physician for the issues

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raised. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals,

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Plaintiff is unable to prove the elements of a constitutional violation against Dep. Dir. Lewis and

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CEO Young for the processing and/or reviewing of his inmate appeals.

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However, Plaintiff may be able to prove the elements for a claim under the Eight

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Amendment for deliberate indifference to his serious medical needs against Dr. Adams since he

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apparently had both medical training and the authority to intercede on Plaintiff’s behalf. If

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Plaintiff meets his burden of proof as to the elements of a claim against medical personnel for

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deliberate indifference to his serious medical needs, he will likely also be able to meet his burden

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of proof as to the elements of a claim against defendants with medical training if they reviewed

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and ruled against Plaintiff in his medical appeals on that same issue. However, as discussed

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above, Plaintiff has not stated a cognizable claim for deliberate indifference to his serious medical

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needs. Thus, he fails to state a claim against Dr. Adams for failing to take corrective action via

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the inmate appeals process.

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4.

Supervisory Liability

It appears that Plaintiff named CEO Young and Dep. Dir. Lewis based on their

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supervisory positions. Generally, supervisory personnel are not liable under section 1983 for the

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actions of their employees under a theory of respondeat superior -- when a named defendant

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holds a supervisory position, the causal link between him and the claimed constitutional violation

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must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v.

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Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979).

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To state a claim for relief under this theory, Plaintiff must allege some facts that would

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support a claim that supervisory defendants either: personally participated in the alleged

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deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or

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promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of

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constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). To show this, “a plaintiff must show the supervisor breached a duty to plaintiff

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which was the proximate cause of the injury. The law clearly allows actions against supervisors

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under section 1983 as long as a sufficient causal connection is present and the plaintiff was

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deprived under color of law of a federally secured right.” Redman v. County of San Diego, 942

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F.2d 1435, 1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by

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

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“The requisite causal connection can be established . . . by setting in motion a series of

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acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly

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refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably

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should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty.

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of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual

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capacity for his own culpable action or inaction in the training, supervision, or control of his

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subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a

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reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d

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1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted).

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It is true that "inmates lack a separate constitutional entitlement to a specific prison

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grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest

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in processing of appeals because no entitlement to a specific grievance procedure), citing Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988). A[A prison] grievance procedure is a procedural right

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only, it does not confer any substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see

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also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure

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confers no liberty interest on prisoner).

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However, a plaintiff may "state a claim against a supervisor for deliberate indifference

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based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or

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her subordinates," Starr v. Baca, 652 F.3d 1202, 1207 (2011), which may be shown via the

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inmate appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and

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failed to take corrective action, allowing the violation to continue.

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Plaintiff's claim against Dep. Dir. Lewis rests exclusively on his involvement in the
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handling and processing of Plaintiff’s inmate appeal, which as noted above is not actionable.

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Ramirez, 334 F.3d at 860. Likewise, Plaintiff’s allegations against CEO Young are not actionable

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as Plaintiff fails to show that CEO Young had knowledge that Plaintiff needed group therapy

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prior to Plaintiff’s inmate appeal. Further, to be liable in a supervisorial capacity, Plaintiff must

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first state cognizable claims against subordinates of CEO Young and Dep. Dir. Lewis, which as

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discussed above, Plaintiff has not done.
ORDER

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For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first
amended complaint within twenty-one (21) days. If Plaintiff needs an extension of time to

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comply with this order, Plaintiff shall file a motion seeking an extension of time no later than

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twenty-one (21) days from the date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff's first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and

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plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). 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 . . . ." Twombly, 550 U.S. 127, 555

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(2007) (citations omitted).

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Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be "complete in itself without reference to the prior or superceded

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pleading," Local Rule 220.
The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

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by the Court in this order. 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 first amended

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

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff's Complaint is dismissed, with leave to amend;

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2.

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

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3.

Within twenty-one (21) days from the date of service of this order, Plaintiff must

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file a first amended complaint curing the deficiencies identified by the Court in

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this order or a notice of voluntary dismissal; and
5.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order and for failure to state a cognizable claim.

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IT IS SO ORDERED.
Dated:

March 3, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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.