Perez v. Corizon Health, et al.

Filing 9

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 1 signed by Magistrate Judge Michael J. Seng on 11/7/2017. First Amended Complaint due by 12/11/2017. (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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SYLVIA PEREZ,

CASE NO. 1:17-cv-01021-MJS (PC)

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Plaintiff,

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(ECF NO. 1)

v.

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CORIZON HEALTH, et al.,

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

Defendants.

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

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rights action brought pursuant to 42 U.S.C. § 1983. She has consented to Magistrate

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Judge jurisdiction (ECF No. 5). No other parties have appeared in the action.
Plaintiff’s complaint (ECF No.1) is before the Court for screening.

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I.

Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiffs must set forth “sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility demands

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more than the mere possibility that a defendant committed misconduct and, while factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78.

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To

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state a claim under section 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that

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the alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245

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(9th Cir. 1987).

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Under section 1983 the plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). This requires the presentation of factual allegations sufficient to state a plausible

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claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to

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have their pleadings liberally construed and to have any doubt resolved in their favor,

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,

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the mere possibility of misconduct falls short of meeting the plausibility standard. Iqbal,

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556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

Plaintiff’s Allegations

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Plaintiff is serving a three year sentence in the Fresno County Jail, where the acts

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giving rise to her complaint arose. Plaintiff names as Defendants (1) Corizon Health, (2)

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Fresno County Jail, (3) Doe 1, Fresno County Sheriff, and (4) Doe 2, Correctional

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Officer.

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Plaintiff’s complaints are numerous and diverse, but can be fairly summarized as
follows:
Plaintiff suffers from several medical conditions that have not been properly
treated.
Her requests for medication for pain from a miscarriage or abortion have been
refused.

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She advised a nurse that she might have blood clots, and was given aspirin as a

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blood thinner. As a result, she began hemorrhaging, lost consciousness due to low blood

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pressure, and hit her head. She was not tested to see if she had a head injury.

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She was denied follow up after an April 2016 medical test indicated a mass,
possibly cancer, in her left kidney.
Defendants denied pain medication and other treatment only to save costs.
Instead of treatment, Plaintiff was put into lock down.

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Plaintiff also has Post Traumatic Stress Disorder (“PTSD”) and a May 2017 court

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order that she receive medication for it. She was told she would receive her PTSD

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medication in two weeks, but it has been two months. She has yet to see a psychiatrist.

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Plaintiff also raises sanitation concerns. She was promised clean clothing, hazard
bags, and Depends for her bleeding, but has been provided none of them.

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Plaintiff could not climb into her top bunk because of the miscarriage, and so took

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her cell mate’s bottom bunk. This led to a fight with the roommate, several broken teeth

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and swallowing of Plaintiff’s partial dental plate. Instead of medical care, Plaintiff was told

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she would eventually “poop it out.” Plaintiff felt humiliated.
Defendants refuse to sign plaintiff’s grievances and instead rip them up. Inmates

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do not receive responses to grievances.

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Plaintiff does not specifically identify the legal claims she wishes to make, but

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states that her rights under the Americans Disabilities Act (“ADA”) and the Constitution

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have been violated. She seeks compensatory damages, medical treatment and

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disciplinary action against correctional officers.

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IV.

Analysis

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A.

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As an initial matter, Plaintiff brings claims arising from different events relating to

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Unrelated Claims

different matters.

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Plaintiff may not bring unrelated claims against unrelated parties in a single

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action. Fed. R. Civ. P. 18(a), 20(a)(2); George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). Plaintiff may bring a claim against multiple defendants so long as (1) the claim

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arises out of the same transaction or occurrence, or series of transactions and

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occurrences, and (2) there are common questions of law or fact. Fed. R. Civ. P. 20(a)(2);

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Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v.

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Insurance Co. of North America, 623 F.2d 1371, 1375 (9th Cir. 1980).

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Here, most of Plaintiff’s claims relate to the denial of medical care, however, she

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also brings allegations regarding the mishandling of grievances and an altercation with

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her bunkmate. Although the exact claims that Plaintiff wishes to bring and the parties

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that Plaintiff wishes to sue are unclear, it appears these claims are not suitable for

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pursuit in a single action. If the claims do not arise from the same occurrence or have

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common questions of law or fact then Plaintiff may need to bring additional suits

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regarding these matters.

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B.

Parties
1.

Municipal Liability

Plaintiff sues Corizon Health and Fresno County Jail. She thus appears to intend
to make a Monell claim.

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“[S]ection 1983 imposes liability only on ‘persons’ who, under color of law,

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deprive others of their constitutional rights, [and] the Supreme Court has construed the

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term ‘persons’ to include municipalities such as the County.” Castro v. Cty. of Los

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Angeles, 797 F.3d 654, 670 (9th Cir. 2015) (citing Monell v. Dep’t of Social Services, 436

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U.S. 658, 690-91 (1978)). Counties may not be held liable for the actions of their

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employees under a theory of respondeat superior, but they may be held liable for a

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constitutional violation if an action taken pursuant to a policy, be it a formal or informal

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policy, caused the underlying violation. Castro, 797 F.3d at 670 (citing City of St. Louis v.

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Praprotnik, 485 U.S. 112, 131 (1989) and Monell, 436 U.S. at 691) (quotation marks

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omitted); see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010)

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(municipal liability claim cannot be maintained unless there is an underlying

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constitutional violation).

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Municipal liability may also be imposed where the local government unit’s

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omission led to the constitutional violation by its employee. Gibson v. Cty. Of Washoe,

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Nev., 290 F.3d 1175, 1186 (9th Cir. 2002). Under this route to municipal liability, the

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“plaintiff must show that the municipality’s deliberate indifference led to its omission and

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that the omission caused the employee to commit the constitutional violation.” Id. This

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kind of deliberate indifference is found when the need to remedy the omission is so

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obvious, and the failure to act so likely to result in the violation of rights, that the

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municipality reasonably can be said to have been deliberately indifferent when it failed to

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act. Id. at 1195.

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In regards to the claims against Fresno County Jail, Plaintiff has not linked any

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underlying violation of her rights to a policy or practice attributable to the county, or

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shown that the county knew of, and blatantly ignored, the alleged violations committed

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by its employees.

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Plaintiff also brings claims against Corizon Health, which provides health services

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for Fresno County Jail, a public entity. Plaintiff may assert Monell claims against a

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private entity contracting with a municipality provided (1) the private entity acted under

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color of state law, (2) a constitutional violation occurred, and (3) the violation was caused

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by an official policy or custom. Tsao, 698 F.3d 1128, 1139 (9th Cir.2012). She has

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sufficiently alleged that Corizon was acting under color of state law. Jensen, 222 F.3d at

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575-576. However, she has failed to link any violations by Corizon to a policy or practice

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attributable to the county or Corizon itself, or provided any facts to show the entity knew

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of, and blatantly ignored, constitutional violations by its staff.

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Therefore, all claims against Fresno County Jail and Corizon Health will be

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dismissed with leave to amend. Should Plaintiff wish to bring a Monell claim against

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these defendants, she must clarify which policy or practice of the county contributed to a

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constitutional violation, or show that the county or Corizon knew of, and ignored, a

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constitutional violation.

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2.

Doe Defendants

Plaintiff makes general allegations regarding unspecified Doe Defendants, Doe 1
and Doe 2.

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The use of Doe defendants generally is disfavored in federal court. Wakefield v.

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Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 E.2d

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637, 642 (9th Cir. 1980)). Plaintiff may, under certain circumstances, be given the

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opportunity to identify unknown defendants through discovery prior to service. Id.

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(plaintiff must be afforded an opportunity to identify unknown defendants through

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discovery unless it is clear that discovery would not uncover their identities). However,

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before Plaintiff may engage in discovery as to the unknown defendants, she first must

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link each of them to a constitutional violation. She must address each defendant

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separately, i.e., Doe 1, Doe 2, Doe 3, etc., and must set forth facts describing how each

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Doe defendant personally participated in the violation of her constitutional rights.

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In this case, Plaintiff fails to allege the specific acts that the Doe Defendants

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engaged in that violated her constitutional rights. These claims therefore will be

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dismissed with leave to amend.

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3.

Plaintiff’s complaint also contains allegations against “SERT Officer Dulce

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Non-Parties

Gonzalez.”

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Rule 10(a) of the Federal Rules of Civil Procedure requires that each defendant

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be named in the caption of the complaint. A complaint is subject to dismissal if “one

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cannot determine from the complaint who is being sued, [and] for what relief. . . .”

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McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). As Gonzalez is not named in the

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caption, the Court is unable to determine whether Plaintiff intends to proceed against

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her.

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Accordingly, the Court will not herein address allegations against non-party

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Gonzalez. If Plaintiff wishes to pursue such allegations, she may amend her complaint

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and include Gonzalez in the caption.

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4.

Linkage

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Section 1983 provides a cause of action for violations of constitutional or other

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federal rights by persons acting under the color of state law. Wilder, 496 U.S. at 508. To

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state a claim under Section 1983, the plaintiff must demonstrate that each defendant

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personally participated in the deprivation of her rights. Iqbal, 556 U.S. at 676-77.

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Liability may not be imposed on supervisory personnel under the theory of

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respondeat superior. Id. Supervisory personnel may only be held liable if they

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“participated in or directed the violations, or knew of the violations and failed to act to

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prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) accord Starr v. Baca,

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652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).

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In this instance, Plaintiff makes no allegations regarding any specific actions

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taken by any individual defendants that led to her constitutional rights being violated.

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Since the Court is unable to analyze the claims without specific allegations, the Court will

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provide the relevant legal standards regarding the claims that Plaintiff may be wishing to

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make. If Plaintiff wishes to amend regarding these claims, she must allege specific

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actions taken by specific defendants that violate these standards.

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C.

Eighth Amendment

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The Eighth Amendment protects prisoners from inhumane conditions of

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confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer

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v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347

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(1981)) (quotation marks omitted). Although prison conditions may be restrictive and

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harsh, prison officials must provide food, clothing, shelter, sanitation, medical care, and

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personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (quotations omitted).

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Prison officials have a duty to take reasonable steps to protect inmates from

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physical abuse. Farmer, 511 U.S. at 832-33 (1994) (quotations omitted). To establish a

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violation of this duty, the prisoner must show first, that he was incarcerated under

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conditions posing a substantial risk of serious harm; and second, that a prison official

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knew of and was deliberately indifferent to this risk. Id. at 834.

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In addition, the government has an "obligation to provide medical care for those

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whom it is punishing by incarceration," and failure to meet that obligation can constitute

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an Eighth Amendment violation cognizable under § 1983. Estelle v. Gamble, 429 U.S.

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97, 103-105 (1976). To establish an Eighth Amendment violation, a prisoner "must

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satisfy both the objective and subjective components of a two-part test." Hallett v.

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Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted). A prisoner must show (1) a

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serious medical need by demonstrating that failure to treat a prisoner's condition could

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result in further significant injury or the unnecessary and wanton infliction of pain, and (2)

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that the defendant’s response to the need was deliberately indifferent. Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin v. Smith, 974 F.2d 1050, 1559-

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1560 (9th Cir. 1991), overruled in part on other grounds by WMX Techs., Inc. v. Miller,

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104 F.3d 1133 (9th Cir. 1997).

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

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1051, 1060 (9th Cir. 2004). A mere "difference of medical opinion . . . [is] insufficient, as

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a matter of law, to establish deliberate indifference." Id. at 1058. Mere indifference,

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negligence, or medical malpractice is not sufficient to support the claim. Broughton v.

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Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 87,

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105-06 (1976)). A prisoner can establish deliberate indifference by showing that officials

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intentionally interfered with his medical treatment for reasons unrelated to the prisoner’s

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medical needs. See Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992); Estelle,

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429 U.S. at 105.

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Lack of sanitation may also be a violation under the Eighth Amendment. The

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Ninth Circuit proscribes subjecting a prisoner to a lack of sanitation that is “severe or

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prolonged.” Andersen v. County of Kern, 45 F.3d 1310, 1315–15 (9th Cir. 1995).

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Depriving inmates of the tools necessary to maintain minimally sanitary cells when a

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prison was in a condition of “squalor” was found to seriously threaten prisoners’ health

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and amounted to a violation of the Eighth Amendment. See Hoptowit v. Spellman, 753

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F.2d 779, 784 (9th Cir. 1985). In addition, subjecting an inmate to “torn, smelly, blood-

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and urine-stained bedding without clean linens” for more than forty days was found to be

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objectively unreasonable. Torres v. Arellano, No. 1:15-cv-00575-DAD-MJS (PC), 2017

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U.S. Dist. LEXIS 43555, at *17 (E.D. Cal. Mar. 24, 2017). While the Ninth Circuit has not

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ruled on whether a dirty, stained mattress and dirty bed linens constitute an objectively

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unreasonable deprivation, other Federal courts have acknowledged the necessity of

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providing inmates with clean mattresses and bedding on a regular basis. See Pugh v.

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Locke, 406 F. Supp. 318, 334 (M.D. Ala. 1976) aff'd, in part, 559 F.2d 283 (5th Cir. 1977)

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rev'd. in part on other grounds, 438 U.S. 781 (1978) (per curiam); Ahrens v. Thomas,

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434 F. Supp. 873, 901 (W.D. Mo. 1977) modif. in part, 570 F.2d 286 (8th Cir. 1978).

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Toussaint v. Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983).

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D.

Americans with Disabilities Act

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Title II of the Americans with Disabilities Act 42 U.S.C. § 12101, et seq., provides

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that “no qualified individual with a disability shall, by reason of such disability, be

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excluded from participation in or be denied the benefits of the services, programs, or

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activities of a public entity, or be subjected to discrimination by any such entity.” 42

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U.S.C. § 12132; Weinrich v. L.A. County Metro Transp. Auth., 114 F.3d 976, 978 (9th

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Cir.), cert. denied, 522 U.S. 971 (1997). The Act defines "public entity" to include any

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state or local government and any department, agency, or other instrumentality of a

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state. 42 U.S.C.S. § 12131(1).

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Title II of the ADA applies to municipalities and counties. Lee v. City of Los

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Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (applying ADA and RA to any department,

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agency, or other instrumentality of a state); Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1141

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(9th Cir. 2001) (noting that the RA and ADA also apply to municipalities and counties).

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The ADA does not provide a cause of action for claims against individuals, because the

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proper defendant in such actions is the public entity responsible for the alleged

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discrimination. U.S. v. Georgia, 546 U.S. 151, 157 (2006). A prisoner may state a Title II

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claim based on “the alleged deliberate refusal of prison officials to accommodate [a

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prisoner's] disability-related needs in such fundamentals as mobility, hygiene, medical

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care, and virtually all other prison programs[.]” Id. at 157.

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To state a claim under the ADA, the plaintiff must allege four elements: (1) the

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plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to

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participate in or receive the benefit of some public entity's services, programs, or

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activities; (3) the plaintiff was either excluded from participation in or denied the benefits

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of the public entity's services, programs or activities, or was otherwise discriminated

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against by the public entity; and (4) such exclusion, denial of benefits, or discrimination

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was on account of the plaintiff's disability. While the Rehabilitation Act (“RA”) has the

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additional requirement that the program or activity receive federal funds, 29 U.S.C. §

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794, “[t]here is no significant difference in analysis of the rights and obligations created

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by the ADA and the Rehabilitation Act. Thus, courts have applied the same analysis to

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claims brought under both statutes,” Zukle v. Regents of the Univ. of California, 166 F.3d

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1041, 1045 n.11 (9th Cir. 1999) (citations omitted). Simmons v. Navajo County, Ariz.,

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609 F.3d 1011, 1021 (9th Cir. 2010); McGary v. City of Portland, 386 F.3d 1259, 1265

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(9th Cir. 2004); Weinrich, 114 F.3d at 978. In Duvall the Ninth Circuit stated that “[t]o

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recover monetary damages under Title II of the ADA or the Rehabilitation Act, a plaintiff

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must prove intentional discrimination on the part of the defendant.” 260 F.3d at 1138

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(citing Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir.1998) (footnote omitted)).

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C.

Improper Handling of Grievances

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The Due Process Clause protects Plaintiff against being deprived of protected

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interests without fair procedures. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

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However, Plaintiff has no stand-alone due process rights related to the administrative

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grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988). Failing to properly process a grievance does

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not constitute a due process violation. See e.g., Wright v. Shannon, No. 1:05-cv-01485-

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LJO-YNP PC, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff's allegations that

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prison officials denied or ignored his inmate appeals failed to state a cognizable claim

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under the First Amendment); Williams v. Cate, No. 1;09-cv-00468-OWW-YNP PC, 2009

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WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in

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the vindication of his administrative claims.”). Additionally, the denial of a prisoner’s

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administrative appeal generally does not cause or contribute to the underlying violation.

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George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (quotation marks omitted). At the

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same time, prison administrators cannot willfully turn a blind eye to constitutional

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violations being committed by subordinates. Jett v. Penner, 439 F.3d 1091, 1098 (9th

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Cir. 2006).

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D.

State Law Claims

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This Court may exercise jurisdiction over a state law claim pursuant to 28 U.S.C.

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' 1367(a), which states that in any civil action in which the district court has original

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jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in

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the action within such original jurisdiction that they form part of the same case or

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controversy under Article III [of the Constitution],” except as provided in subsections (b)

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and (c). “[Once judicial power exists under ' 1367(a), retention of supplemental

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jurisdiction over state law claims under ' 1367(c) is discretionary.” ACI v. Varian Assoc.,

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Inc., 114 F.3d 999, 1000 (9th Cir. 1997). The Supreme Court has cautioned that “if the

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federal claims are dismissed before trial, . . . the state claims should be dismissed as

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well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

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To state a tort claim against a public employee, a plaintiff must allege compliance

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with the Tort Claims Act. State v. Super. Ct., 90 P.3d at 124; Mangold, 67 F.3d at 1477;

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Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). The Tort

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Claims Act requires that a tort claim against a public entity or its employees be

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presented to the California Victim Compensation and Government Claims Board (“the

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Board”) no more than six months after the cause of action accrues. Cal. Govt. Code ''

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905.2, 910, 911.2, 945.4, 950-950.2 (West 2009). Presentation of a written claim, and

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action on or rejection of the claim are conditions precedent to suit. State v. Super. Ct. of

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Kings Cty. (Bodde), 90 P.3d 116, 124 (2004); Mangold v. California Pub. Utils. Comm=n,

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67 F.3d 1470, 1477 (9th Cir. 1995). An action must be commenced within six months

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after the claim is acted upon or is deemed to be rejected. Cal. Govt. Code ' 945.6;

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Moore v. Twomey, 16 Cal. Rptr. 3d 163 (Cal. Ct. App. 2004).

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According to the California=s Tort Claims Act a public employee is liable for injury

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to a prisoner “proximately caused by his negligent or wrongful act or omission.” Cal.

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Gov’t Code § 844.6(d. Under California law, “’‘[t]he elements of negligence are: (1)

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defendant’s obligation to conform to a certain standard of conduct for the protection of

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others against unreasonable risks (duty); (2) failure to conform to that standard (breach

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of duty); (3) a reasonably close connection between the defendant’s conduct and

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resulting injuries (proximate cause); and (4) actual loss (damages).’” Corales v. Bennett,

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567 F.3d 554, 572 (9th Cir. 2009) (quoting McGarry v. Sax, 158 Cal. App. 4th 983, 994

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(2008)). For claims based on medical malpractice, defendant has a duty “to use such

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skill, prudence, and diligence as other members of his profession commonly possess

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and exercise.” Hanson v. Grode, 76 Cal. App. 4th 601, 606 (1999).

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V.

Conclusion and Order

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Plaintiff’s Complaint does not state a cognizable claim for relief. The Court will

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grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d

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1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, she must demonstrate that the

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alleged acts resulted in a deprivation of her constitutional rights. Iqbal, 556 U.S. at 677-

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78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is plausible

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on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also

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demonstrate that each named Defendant personally participated in a deprivation of her

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

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Plaintiff should note that although she has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this Screening Order and focus her efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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1

original complaint, each claim and the involvement of each defendant must be

2

sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). 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

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1.

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and (2) a copy of her Complaint, filed August 1, 2017;
2.

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The Clerk’s Office shall send Plaintiff (1) a blank civil rights complaint form

Plaintiff’s Complaint is dismissed for failure to state a claim upon which
relief may be granted;

3.

Within thirty (30) 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

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in this order or a notice of voluntary dismissal; and

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4.

If Plaintiff fails to file an amended complaint or notice of voluntary

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dismissal, the Court will dismiss the action, with prejudice, for failure to

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comply with a court order and failure to state a claim, subject to the “three

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strikes” provision set forth in in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

November 7, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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