Munoz v. Hoggard, et al

Filing 17

ORDER DISMISSING FIRST AMENDED COMPLAINT LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 11/03/2017. Twenty-One Day Deadline. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW JESSE MUNOZ, 12 13 Plaintiff, Case No. 1:17-cv-00935-JLT (PC) ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND v. (Doc. 10) 14 HOGGARD, et al., 21-DAY DEADLINE 15 Defendants. 16 INTRODUCTION 17 18 Plaintiff brings this action alleging that his transfer to Pleasant Valley State Prison 19 violated his rights under the Eighth Amendment since he subsequently contracted Valley Fever. 20 As discussed below, Plaintiff fails to state a cognizable claim upon which relief may be granted. 21 Since he was previously provided the applicable standards and leave to amend his pleading, the 22 First Amended Complaint is DISMISSED and Plaintiff is given opportunity to cure the 23 deficiencies in his pleading. 24 A. Screening Requirement and Standard 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 27 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 28 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 1 1 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 3 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 4 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 5 6 B. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 7 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 8 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 9 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 10 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 11 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 12 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 13 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 14 when a pleading says too little -- the baseline threshold of factual and legal allegations required 15 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 16 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 17 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 18 have never held -- and we know of no authority supporting the proposition -- that a pleading may 19 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 20 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 21 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 22 impose unfair burdens on litigants and judges”). 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 24 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 25 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 26 “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 27 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 28 legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 2 1 2 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 3 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 4 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 5 However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,” 6 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 7 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 8 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 9 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 10 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 11 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 12 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 13 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. 14 Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short 15 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 16 when the opportunity to correct the pleadings has been afforded and there has been no 17 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 18 2013). If he chooses to file a second amended complaint, Plaintiff should make it as concise as 19 possible and simply state which of his constitutional rights he believes were violated by each 20 Defendant and the factual basis. Plaintiff need not and should not cite legal authority for his 21 claims as his factual allegations are accepted as true. 22 23 2. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 24 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 25 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 26 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 27 substantive rights, but merely provides a method for vindicating federal rights elsewhere 28 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 3 1 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 2 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 3 or causal connection, between each defendant’s actions or omissions and a violation of his federal 4 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 5 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). Plaintiff fails to link Chief Sup Executive T. Clarke to any of his factual allegations. 6 7 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 8 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 9 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 10 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 11 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 12 F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 13 liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. 14 DISCUSSION Plaintiff’s Allegations1 15 A. 16 Plaintiff is currently in custody at the Santa Rita Jail, in Dublin, California, but his 17 allegations are based on circumstances that allegedly occurred when he was transferred and 18 housed at Pleasant Valley State Prison (“PVSP”). Plaintiff names RN Hoggard, PA Ogbuchi, 19 Chief Sup. Executive T. Clarke, and Chief Executive Officer Donald B. McElroy as the 20 defendants in this action and seeks monetary damages. Plaintiff alleges that when he was housed at PVSP, he contracted Valley Fever. Plaintiff 21 22 alleges RN Hoggard was improperly trained, “failed to meet the deliberate indifference standard,” 23 and “failed to take reasonable steps” which caused Plaintiff “life long injury.” (Doc. 10, p. 2.) 24 Plaintiff alleges that PA Ogbuchi “failed to meet the deliberate indifference standard,” “had a 25 inmate serious medical needs rushed through recklessly placed Plaintiff at ongoing risk,” had 26 poor training which caused serious medical to a prisoner need for life long medical attention for 27 1 28 The quotes from Plaintiff’s allegations throughout this order are repeated verbatim, including grammatical errors, without correction. 4 1 ongoing suffering,” and “delayed/denied Plaintiff serious medical care when prescribing 2 Diflucan, Plaintiff described all symptoms, Valley Fever. Has been in Pleasant valley for 20 3 years this was acting recklessly.” (Id., p. 3.) Plaintiff alleges that PVSP CEO McElroy “failed to 4 oversee . . . staff performance due to this decision Plaintiff has lifelong damage;” “neglected to 5 fully screen incoming inmates or to detect medical problems implicates Eighth Amendment;” 6 “lack of follow up system for treating chronic disease cite as part of Eighth Amendment;” 7 “medical psychiatric chrono shall be used to document the agreement between the ‘sending and 8 receiving’ physicians . . . approval had a job to do and did not do it . . . had knowledge of this 9 ongoing problem;” and “failed to provide serious medical needs to Plaintiff.” (Id., p. 4.) In 10 summary, Plaintiff alleges that he should not have been allowed to be transferred to PVSP, nor 11 should his serious medical needs have been neglected. (Id., p. 5.) Plaintiff states that he is Puerto 12 Rican of African American bloodline and “is more likely to be exposed to (cocci).” (Id.) 13 Plaintiff alleges that his condition will continue to worsen and he will live in pain and suffering, 14 “it will take the life out of him,” and he “will never be able to live a regular life.” (Id.) 15 16 17 18 19 20 As discussed in detail below, Plaintiff fails to state any cognizable claims. However, he is provided the applicable legal standards and opportunity to file an amended complaint. B. Legal Standards 1. Eighth Amendment a. Conditions of Confinement Plaintiff’s allegations are premised on his placement at PVSP. The Eighth Amendment 21 protects prisoners from inhumane methods of punishment and from inhumane conditions of 22 confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. Morgensen, 465 F.3d 1041, 23 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison officials have a duty to 24 ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and 25 personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and 26 citations omitted). To establish a violation of the Eighth Amendment, the prisoner must “show 27 that the officials acted with deliberate indifference. . . .” Labatad v. Corrections Corp. of 28 America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. County of Washoe, 290 F.3d 5 1 2 1175, 1187 (9th Cir. 2002). In the context of exposure to disease, the objective element asks whether prison officials 3 have exposed the prisoner to a serious medical risk of disease. To determine whether the medical 4 risk to which Plaintiff was exposed is serious, the Court considers whether the “risk the prisoner 5 complains of [is] so grave that it violates contemporary standards of decency to expose anyone 6 unwillingly to such a risk. In other words, the prisoner must show that the risk of which he 7 complaints is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 8 36 (1993). 9 The subjective element of an Eighth Amendment Violation asks whether the prison 10 official acted with “deliberate indifference” in denying medical care or exposing the prisoner to 11 the risk of disease. For conduct to qualify as “deliberately indifferent” in the context of 12 conditions of confinement, the conduct must be shown to be “wanton.” “[T]he constraints facing 13 the official” must be considered when determining whether conduct is wanton. Wilson v. Seiter, 14 501 U.S. 294, 303 (1991). A depravation of a treatment or the exposure to a hazard may be 15 wanton only if it was within the official’s ability at the time to avoid the exposure to risk or 16 deprivation of care. “Wantonness consist[s] of acting sadistically and maliciously for the purpose 17 of causing harm.” Id., quoting Whitley v. Albers, 475 U.S. 312, 321-322 (1986). 18 As to the objective component, Plaintiff alleges no facts to indicate that the risk of 19 exposure to Coccidioidies immitis spores (which can develop into Valley Fever) at PVSP is any 20 higher than in the surrounding community. It is worth noting that the attention of courts and 21 official policy-makers regarding the risk of Valley Fever have focused on PVSP and Avenal State 22 Prison. These facilities have drawn particular state and district court attention because, although 23 eight California correctional facilities are located in the endemic area, these two facilities account 24 for 85% of the occurrence of reported cases of Valley Fever in California. See Plata v. Brown, 25 2013 WL 3200587 (N.D. Cal. 2013) at *2. However, an individual who lives out of custody 26 anywhere in the Southern San Joaquin Valley, also runs a relatively high risk of exposure to 27 Coccidioides immitis spores. Unless there is something about a prisoner’s conditions of 28 confinement that raise the risk of exposure substantially above the risk experienced by the 6 1 surrounding community, it cannot be said that the prisoner is forcibly and knowingly exposed to a 2 risk the society would not tolerate to meet the objective component of a claim under the Eight 3 Amendment. 4 Further, Plaintiff fails to state allegations to meet the subjective component of an Eighth 5 Amendment claim. Plaintiff has not shown that any state actor acted wantonly in formulating the 6 policies and procedures which resulted in Plaintiff’s placement at PVSP. As noted above, eight 7 of the State of California’s correctional facilities -- and therefore a substantial proportion of its 8 inmate capacity -- are located in the Southern San Joaquin Valley. If Plaintiff’s allegations (that 9 he was transferred to PVSP where Valley Fever is known to be endemic and contracted Valley 10 Fever, with nothing more) were cognizable, the State of California would not be able to house 11 any inmates at PVSP or Avenal State Prison, and might not be able to house any inmates in any 12 of the eight facilities located in the endemic area. 13 In addition, Plaintiff has failed to allege any facts from which to infer that any state actor 14 was deliberately indifference to Plaintiff’s risk of exposure to the spores that cause Valley Fever. 15 Not only has Plaintiff not alleged any facts from which a finding of deliberate indifference could 16 be inferred, the factual background presented in Plata and other cases since 2005, following 17 placement of the CDCR’s medical care facilities in receivership, demonstrate that California 18 policy makers have been struggling for years to accommodate constitutional requirements within 19 State means. Thus, Plaintiff fails to state a cognizable claim based on the policies and/or 20 procedures that led to his housing at PVSP. 21 22 b. Serious Medical Needs Plaintiff’s allegations against RN Hoggard, PA Ogbuchi, and CMO McElroy are based 23 solely on the failure to properly diagnosis and treat him for Valley Fever. Prison officials violate 24 the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a prisoner's] serious medical 25 needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need is serious if failure to treat 26 it will result in ‘ “significant injury or the unnecessary and wanton infliction of pain.” ’ ” Peralta 27 v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th 28 Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other 7 1 2 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc)) To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 3 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 4 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 5 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 6 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 7 (quotation marks omitted)). 8 9 As to the first prong, indications of a serious medical need “include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or 10 treatment; the presence of a medical condition that significantly affects an individual’s daily 11 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 12 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 13 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s 14 Valley Fever is accepted as a serious medical need. 15 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 16 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 17 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 18 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 19 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 20 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 21 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 22 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 23 substantial; however, such would provide additional support for the inmate’s claim that the 24 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 25 F.2d at 1060. 26 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 27 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 28 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 8 1 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 2 official should have been aware of the risk, but was not, then the official has not violated the 3 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 4 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 5 Plaintiff’s allegations that Dr. Ola initially misdiagnosed Plaintiff’s Valley Fever as a cold 6 and that Dr. Ola and other medical staff subsequently misinterpreted the test results and wrongly 7 diagnosed Plaintiff with bronchitis, are not cognizable. At most, such allegations may equate to 8 negligence or medical malpractice. However, to be actionable under the Eighth Amendment, “the 9 indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or 10 ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 11 622 F.2d 458, 460 (9th Cir.1980) (citing Estelle, 429 U.S. at 105-06); Toguchi v. Chung, 391 F.3d 12 1051, 1060 (9th Cir.2004). 13 Plaintiff’s allegations against RN Hoggard and PA Ogbuchi are largely conclusory 14 statements which do not suffice to state a cognizable claim. Iqbal, 556 U.S. at 678. Plaintiff fails 15 to state a cognizable claim against RN Hoggard or PA Ogbuchi as he fails to state any factual 16 allegations to show that they knowingly disregarded a substantial risk of serious harm to 17 Plaintiff’s health. Ineptitude, no matter how devastating its affect, is not deliberate indifference. 18 19 2. CMEO McElroy Plaintiff alleges that PVSP CMEO McElroy “failed to oversee . . . staff performance;” 20 “neglected to fully screen incoming inmates or to detect medical problems implicates Eighth 21 Amendment;” “lack of follow up system for treating chronic disease cite as part of Eighth 22 Amendment;” “medical psychiatric chrono shall be used to document the agreement between the 23 ‘sending and receiving’ physicians . . . approval had a job to do and did not do it . . . had 24 knowledge of this ongoing problem;” and “failed to provide serious medical needs to Plaintiff.” 25 (Doc. 10, p. 4.) 26 Under section 1983, liability may not be imposed on supervisory personnel for the actions 27 of their employees under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 28 (2009). “In a § 1983 suit or a Bivens action - where masters do not answer for the torts of their 9 1 servants - the term ‘supervisory liability’ is a misnomer.” Id. Therefore, when a named 2 defendant holds a supervisory position, the causal link between him and the claimed 3 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th 4 Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 5 (1979). 6 To state such a claim, a plaintiff must allege facts that show supervisory defendants either: 7 personally participated in the alleged deprivation of constitutional rights; knew of the violations 8 and failed to act to prevent them; or promulgated or “implemented a policy so deficient that the 9 policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of the 10 constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 11 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). An unconstitutional policy cannot 12 be proved by a single incident “unless proof of the incident includes proof that it was caused by 13 an existing, unconstitutional policy.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 14 S.Ct. 2427 (1985). In this instance, a single incident establishes a “policy” only when the 15 decision-maker has “final authority” to establish the policy in question. Collins v. City of San 16 Diego, 841 F.2d 337, 341 (9th Cir. 1988), citing Pembauer v. City of Cincinnati, 475 U.S. 469, 17 106 S.Ct. 1292 (1986). 18 Further, “discrete wrongs B for instance, beatings B by lower level Government actors . . . 19 if true and if condoned by [supervisors] could be the basis for some inference of wrongful intent 20 on [the supervisor’s] part.” Iqbal, 556 U.S. at 683. To this end, the Ninth Circuit has held that, 21 where the applicable constitutional standard is deliberate indifference, a plaintiff may state a 22 claim for supervisory liability based on the supervisor’s knowledge of and acquiescence in 23 unconstitutional conduct by others. Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011). A fundamental 24 premise of this form of liability requires that the actions or inaction by subordinate staff amount 25 to a cognizable claim for violation of a plaintiff’s constitutional rights and that the supervisorial 26 defendant had knowledge of such conduct. As discussed above, Plaintiff does not state a 27 cognizable claim against RN Hoggard or PA Ogbuchi for CMEO McElroy to be liable based on 28 knowledge and acquiescence; nor does Plaintiff state sufficient factual allegations against CMEO 10 1 2 McElroy to show that the CMEO personally acted, or failed to act, or implemented a policy that amounted to a violation of Plaintiff’s rights. ORDER 3 4 For the reasons set forth above, Plaintiff's First Amended Complaint is dismissed with 5 leave to file a second amended complaint within 21 days. If Plaintiff needs an extension of time 6 to comply with this order, Plaintiff shall file a motion requesting it no later than 21 days from the 7 date of service of this order. 8 9 Plaintiff must demonstrate in any second amended complaint how the conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. 10 Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific 11 terms how each named defendant is involved. There can be no liability under section 1983 unless 12 there is some affirmative link or connection between a defendant’s actions and the claimed 13 deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 14 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Plaintiff’s second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short 16 and plain statement must “give the defendant fair notice of what the . . . claim is and the grounds 17 upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 18 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 19 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 20 (2007) (citations omitted). 21 Plaintiff is cautioned that an amended complaint supercedes the original, Lacey v. 22 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 23 2012) (en banc), and must be “complete in itself without reference to the prior or superceded 24 pleading,” Local Rule 220. 25 The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 26 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 27 may not change the nature of this suit by adding new, unrelated claims in his second amended 28 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 11 1 Based on the foregoing, the Court ORDERS: 2 1. Plaintiff’s First Amended Complaint is dismissed, with leave to amend; 3 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 4 3. Within 21 days from the date of service of this order, Plaintiff shall file a second 5 amended complaint curing the deficiencies identified by the Court in this order or 6 a notice of voluntary dismissal; and 7 4. 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. 8 9 10 11 IT IS SO ORDERED. Dated: November 3, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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