Dean v. Cavagnaro et al

Filing 34

ORDER signed by Magistrate Judge Kendall J. Newman on 4/26/2010. Clerk directed to assign a District Judge to this matter. District Judge Morrison C. England, Jr. is ASSIGNED as presider in this case and Magistrate Judge Newman assigned as referral. The 32 Second Amended Prisoner Civil Rights Complaint is DISMISSED and plaintiff is GRANTED 30 days and one final opportunity to submit completed Notice of Amendment together with Third Amended Complaint; and RECOMMENDING that plaintiff's 29 30 Motions for Injunctive Relief be denied. Within 21 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff, a state prisoner proceeding without counsel and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. By Orders on February 26, 2010, and March 5, 2010, plaintiff's prior motion for injunctive relief was vacated and plaintiff's original complaint was dismissed with leave to file an amended complaint and a new motion for injunctive relief. The original motion for injunctive relief and the complaint were vague and lacked a coherent statement of the facts. On March 8, 2010, plaintiff filed two new motions for injunctive relief. Plaintiff filed an amended complaint on March 9, 2010, and then a second amended complaint on March 22, 2010. Second Amended Complaint The court will screen plaintiff's second amended complaint. As stated before, the court is required to screen complaints brought by prisoners seeking relief against a governmental 1 vs. CAVAGNARO, et al., Defendants. / ORDER & FINDINGS AND RECOMMENDATIONS ALTON E. DEAN, Plaintiff, No. 2:09-cv-1339 KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Plaintiff has not corrected the deficiencies discussed in his prior complaint. The second amended complaint is again confusing and lacks a coherent statement of facts. Plaintiff 2

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alleges that defendant correctional officer Cavagnaro "thrived on observing plaintiff suffering" and is somehow responsible for the improper medical care that plaintiff has received, as plainitff is in a wheelchair. Plaintiff sets forth a litany of accusations against Cavagnaro though it's not clear when these events occurred as plaintiff describes some incidents from 10 years ago. Plaintiff also directs many accusations against "a racist Russian doctor" but it's not entirely clear who that defendant is or how the doctor was deliberately indifferent to plaintiff's medical needs. Plaintiff lists several grievances concerning medical care but none in sufficient detail. Plaintiff's complaint will be dismissed. Plaintiff will be granted one final opportunity to file a third amended complaint. The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person `subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel 3

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The court finds the allegations in plaintiff's complaint so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. The court has determined that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiffs claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file one more amended complaint. If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions about which he complains resulted in a deprivation of plaintiff's constitutional rights. Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). In addition, plaintiff is hereby informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement exists because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended 4

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complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. Preliminary Injunction/Temporary Restraining Order "The proper legal standard for preliminary injunctive relief requires a party to demonstrate `that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Stormans, Inc. v. Selecky, 571 F.3d 960, 978 (9th Cir. 2009), quoting Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375-76 (2008). In cases brought by prisoners involving conditions of confinement, any preliminary injunction "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct the harm." 18 U.S.C. § 3626(a)(2). Once again plaintiff's two motions for injunctive relief are rambling and confusing and the court is not clear what relief plaintiff seeks. The motion found in Docket No. 29 makes very little sense and Docket. No. 30 is a list of grievances against various officials with no coherent argument. Plaintiff's motions for injunctive relief should be denied. Accordingly, IT IS HEREBY ORDERED that: 1. The Clerk of the Court assign a District Judge to this case. 2. Plaintiff's second amended complaint is dismissed. Plaintiff will be granted one final opportunity to file a third amended complaint. 3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court: a. The completed Notice of Amendment; and b. An original and one copy of the Third Amended Complaint. 5

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Plaintiff's third amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The third amended complaint must also bear the docket number assigned to this case and must be labeled "Third Amended Complaint." Failure to file a third amended complaint in accordance with this order may result in the dismissal of this action. IT IS HEREBY RECOMMENDED that plaintiff's motions for injunctive relief filed on March 8, 2010 (Dkt. Nos. 29, 30) be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twentyone days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 26, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

dean1339.amnd

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiff 22 23 24 25 26 7 DATED: order filed CAVAGNARO, et al., Defendants. NOTICE OF AMENDMENT vs. ALTON E. DEAN, Plaintiff, No. 2:09-cv-1339 KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

____________________________________/ Plaintiff hereby submits the following document in compliance with the court's : ______________ Third Amended Complaint