Barron v. Martel et al

Filing 16

ORDER signed by Magistrate Judge Dale A. Drozd on 10/7/2011 ORDERING that pltf's 15 amended cmplt is DISMISSED; pltf has 30 days to file a second amended cmplt; and the clerk to send pltf a form for filing a civil rights action. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE E. BARRON,

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Plaintiff,

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vs.
M. MARTEL, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action
filed pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint.

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No. CIV S-10-1567 WBS DAD P

SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief

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

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

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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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
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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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.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the

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actions of their employees under a theory of respondeat superior and, therefore, when a named

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defendant holds a supervisorial position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

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(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory

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allegations concerning the involvement of official personnel in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S AMENDED COMPLAINT
In his amended complaint, plaintiff identifies Warden Martel, Chief Medical

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Officer Smith, Dr. Galloway, Dr. Naseer, Physician’s Assistant Todd, and Nurse Martinez as the

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defendants in this action. Plaintiff appears to be attempting to allege that the named defendants

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have failed to provide him adequate medical care resulting in him having his sternum removed.

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Plaintiff alleges that he has filed numerous inmate appeals regarding his dissatisfaction with his

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medical care. In terms of relief, plaintiff requests monetary damages. (Am. Compl. at 11 &

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Attach. at 1-2.)

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DISCUSSION
As with plaintiff’s original complaint, the allegations in plaintiff’s amended

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complaint are so vague and conclusory that the court is unable to determine whether the current

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action is frivolous or fails to state a claim for relief. The complaint does not contain a short and

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plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a

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flexible pleading policy, a complaint must give fair notice to the defendants and must allege facts

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that support the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support his claims. Id. Because
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plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must

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be dismissed. The court will, however, provide plaintiff a final opportunity to correct the

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deficiencies of his complaint and will therefore grant him leave to file a second amended

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complaint.

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If plaintiff chooses to file a second amended complaint, he must allege facts

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demonstrating how the conditions complained of resulted in a deprivation of plaintiff’s federal

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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The second

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amended complaint must allege in specific terms how each named defendant was involved in the

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deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of

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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982).

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Insofar as plaintiff wishes to proceed in this action on an inadequate medical care

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claim, he is advised that he will need to allege facts demonstrating how each individual

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defendant’s actions rose to the level of “deliberate indifference.” In Estelle v. Gamble, 429 U.S.

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97, 106 (1976), the U.S. Supreme Court held that inadequate medical care did not constitute

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cruel and unusual punishment cognizable under § 1983 unless the mistreatment rose to the level

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of “deliberate indifference to serious medical needs.” In applying this standard, the Ninth Circuit

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Court of Appeals has held that before it can be said that a prisoner’s civil rights have been

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abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Lab., 622 F.2d 458, 460 (9th Cir. 1980). In addition, mere differences of opinion between a

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prisoner and prison medical staff as to the proper course of treatment for a medical condition do

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not give rise to a § 1983 claim. See Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1058 (9th

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Cir. 2004).

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Insofar as plaintiff wishes to proceed against any of the defendants for the way in

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which they processed his inmate appeals, he is advised that prison officials are not required under

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federal law to process inmate grievances in a specific way or to respond to them in a favorable

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manner. It is well established that “inmates lack a separate constitutional entitlement to a

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specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)

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(citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). See also, e.g., Wright v. Shannon,

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No. CIV F-05-1485 LJO YNP PC, 2010 WL 445203 at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s

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

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claim under the First Amendment); Walker v. Vazquez, No. CIV F-09-0931 YNP PC, 2009 WL

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5088788 at *6-7 (E.D. Cal. Dec. 17, 2009) (plaintiff’s allegations that prison officials failed to

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timely process his inmate appeals failed to a state cognizable under the Fourteenth Amendment);

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Towner v. Knowles, No. CIV S-08-2833 LKK EFB P, 2009 WL 4281999 at *2 (E.D. Cal. Nov.

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20, 2009) (plaintiff’s allegations that prison officials screened out his inmate appeals without any

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basis failed to indicate a deprivation of federal rights).

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Plaintiff is reminded that the court cannot refer to prior pleadings in order to make

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his second amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files a second amended complaint, the prior pleading no longer serves

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any function in the case. Therefore, in a second amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint (Doc. No. 15) is dismissed;

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2. Plaintiff is granted thirty days from the date of service of this order to file a

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second amended complaint that complies with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint

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must bear the docket number assigned to this case and must be labeled “Second Amended

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Complaint”; failure to file a second amended complaint in accordance with this order will result

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in a recommendation that this action be dismissed without prejudice; and

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3. The Clerk of the Court is directed to send plaintiff the court’s form for filing a

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civil rights action.

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DATED: October 7, 2011.

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DAD:9
barr1567.14am

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