Bontemps v. Sotak et al

Filing 16

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/27/10 ORDERING the 4/13/10 findings and recommendations 13 are VACATED; the complaint is DISMISSED with leave to amend within 30 days. (Carlos, K) Modified on 10/27/2010 (Carlos, K).

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(PC) Bontemps v. Sotak et al Doc. 16 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 vs. SOTAK, et al., Defendants. / Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 1983. On February 1, 2010, the court dismissed plaintiff's complaint with leave to amend.1 On June 7, 2010, plaintiff filed an amended complaint which is now before the court for screening. Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion Plaintiff initially failed to file an amended complaint as directed by the February 1 order. Therefore, on April 13, 2010, the court issued findings and recommendations, recommending that this action be dismissed for failure to state a claim. Dckt. No. 13. In light of the amended complaint filed by plaintiff on June 7, 2010, the court vacates the April 13, 2010 findings and recommendations and screens the amended complaint pursuant to 28 U.S.C. 1915A(a). 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA GREGORY C. BONTEMPS, Plaintiff, No. CIV S-09-2115 EFB P ORDER 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 of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. 1915A(b). In the original screening order, the court found that plaintiff had not stated a cognizable claims against any defendant. Dckt. No. 9. The court explained: Plaintiff claims that defendant Sotak took plaintiff's right foot out of its air cast and stopped plaintiff's medication. Plaintiff claims to be in pain everyday. Plaintiff does not explain why he had an air cast on his right foot or why he had previously received medication. Plaintiff also claims that he is supposed to see an outside doctor but that this has not happened yet. Plaintiff identifies Tidwell in his complaint, but only alleges that Tidwell is a supervisor. It appears that plaintiff intends to pursue a claim based on deliberate indifference to his medical needs. To state a claim defendants provided constitutionally inadequate medical care, plaintiff must allege acts or omissions evidencing identified defendants knew of and disregarded plaintiff's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Farmer, 511 U.S. at 835-37. Plaintiff has not done so. The court also notes that neither defendant's negligence nor plaintiff's general disagreement with the treatment he received suffices to state a claim. Estelle, 429 U.S. at 106; Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988); Jackson v. McIntosh, 90 F.3d 330, 331 (9th Cir. 1996). Furthermore, plaintiff may not sue any supervisor on a theory that the supervisor is liable for the acts of his or her subordinates. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). However, a supervisor may be held liable in his or her individual capacity "`for his own culpable action or inaction in the training, supervision or control of his subordinates.'" Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). "A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff must file an amended complaint to proceed. Plaintiff's amended complaint, should he file one, must clearly identify the individuals he intends to name as defendants. Plaintiff must also include sufficient factual allegations linking each defendant to an act or omission that would indicate a deprivation of plaintiff's federal rights. Id. at 3-4. The court also warned plaintiff that unrelated claims against different defendants must be pursued in different lawsuits. Id. at 4. //// 2 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's amended complaint is not at all responsive to the court's original screening order. In the amended complaint, plaintiff purports to bring a class action on behalf of "all unconvicted, pre-trial detainees" as well as "post-trial detainess, convicted and sentenced prisoners, who are or will in the future be incarcerated" at Rio Consumnes Correctional Center. Am. Compl. at 9. The court notes, as a threshold matter, that plaintiff, who is incarcerated and proceeding pro se, cannot "fairly and adequately protect the interests of the class," as required by Rule 23(a)(4) of the Federal Rules of Civil Procedure. See Halet v. Wend Inv. Co., 672 F.2d 1305, 1308 (9th Cir.1982) (stating that a party must assert his own rights, not those of third parties) (citing Duke Power Co. v. Carolina Envtl Study Group, 438 U.S. 59, 80 (1978)); Warth v. Seldin, 422 U.S. 490, 499 (1974) ("The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally. A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered `some threatened or actual injury resulting from the putatively illegal action . . . .'"); see also Swygert v. Veal, 2008 U.S. Dist. LEXIS 34655, 2008 WL 724193, at *3 (E.D. Cal. Mar. 17, 2008) ("It is well established that a layperson cannot ordinarily represent the interests of a class. . . . This rule becomes almost absolute when, as here, the putative class representative is incarcerated and proceeding pro se."). In any event, plaintiff has not complied with the requirements of Rule 23 and this action, therefore, will not be construed as a class action and instead will be construed as an individual civil suit brought by plaintiff. The amended complaint includes a lengthy list of alleged constitutional violations. However, the allegations do not indicate a deprivation of plaintiff's rights. Instead, the allegations are presented in conclusory terms and apply to the purported class as a whole, and not specifically to plaintiff. Additionally, defendants are not individually linked to alleged violations, but are instead lumped together throughout the complaint as "defendants." See, e.g., Am. Compl. 22 ("Defendant deny plaintiffs meaningful and adequate contact with the general 3 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 community . . . ."), 29 ("Defendants deny plaintiffs an adequate diet to support a healthy body, and as a result, the majority of plaintiffs suffer continuous minor illnesses."), 38 ("defendants impose punishments upon prisoners for violations of Jail rules without notice . . . ."). The amended complaint must be dismissed for failure to state a claim because it makes no allegations linking specific actions or omissions by specific defendants to a deprivation of plaintiff's rights. Further, the amended complaint also violates Rule 8(a) of the Federal Rules of Civil Procedure. It is so prolix and obscure that the court cannot reasonably discern who is being sued, and why (i.e. based on what facts and what legally cognizable causes of action). Thus, the court cannot discharge its responsibility under 1915A until plaintiff complies with the pleading requirements set forth in Rule 8. This rule requires the pleader to set forth his averments in a simple, concise, and direct manner. The degree of simplicity and conciseness required depends on the subject matter of the litigation, the nature of the claims or defenses presented and the number of parties involved. Wright & Miller, Federal Practice & Procedure, vol. 5 1281 & n. 12 (1990) (explaining that an antitrust or copyright pleading due to its complexity, must be pleaded with more detail than a simple negligence complaint). Before undertaking to determine whether the complaint may have merit, the court may insist upon compliance with its rules. See McNeil v. United States, 508 U.S. 106, 113 (1993) (federal rules apply to all litigants, including prisoners lacking access to counsel); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (encouraging "firm application" of federal rules in prisoner cases). Because the amended complaint fails to comply with the court's February 1, 2010 order, fails to state a cognizable claim, and violates Rule 8, it is dismissed. To proceed, plaintiff must file a second amended complaint. Any amended complaint must correct the deficiencies identified by the court in this order, as well as the February 1, 2010 order. The court notes that the original complaint attempted to state medical related claims against defendants Sotak and Tidwell. Plaintiff is warned that he may not change the nature of this suit by alleging new, unrelated claims in an 4 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 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). Should plaintiff choose to file a second amended complaint, he shall identify each defendant in both the caption and the body of the amended complaint, and clearly set forth the allegations against each such defendant. Any amended complaint must be complete in itself without reference to any prior pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading is superseded. Accordingly, the court hereby ORDERS that: 1. The April 13, 2010 findings and recommendations are vacated; and 2. The complaint is dismissed with leave to amend within 30 days. The amended complaint must bear the docket number assigned to this case and be titled "Second Amended Complaint." Failure to file an amended complaint will result in dismissal for failure to state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will proceed with service of process by the United States Marshal. Dated: October 27, 2010. 5

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