Nelson v. Dickinsen et al

Filing 18

ORDER signed by Magistrate Judge John F. Moulds on 4/29/11 ORDERING that Plaintiffs third amended complaint is DISMISSED with 30 days to file a fourth amended complaint.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DYKE EDWARD NELSON,

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Plaintiff,

No. 2:10-cv-2156 JFM (PC)

vs.
KATHLEEN DICKINSON, Warden,
et al.,

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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

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rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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By order filed December 3, 2010, plaintiff’s original and first amended complaints

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were dismissed and plaintiff was granted leave to file a second amended complaint. Plaintiff

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filed a second amended complaint on December 22, 2010. On January 5, 2011, plaintiff filed a

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third amended complaint. The court is required to screen complaints brought by prisoners

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seeking relief against a governmental entity or officer or employee of a governmental entity. 28

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U.S.C. § 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 or malicious,” that fail to state a claim upon which relief

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may be granted, or that seek monetary relief from a defendant who is immune from such relief.
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28 U.S.C. § 1915A(b)(1),(2). Good cause appearing, the court will screen plaintiff’s third

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amended complaint.

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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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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Plaintiff’s third amended complaint contains two separate sets of allegations. In

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the first, plaintiff alleges that he has had continuous problems with access to the prison law

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library at California Medical Facility (CMF) since December 3, 2001, when he arrived at the

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prison. He alleges that because he is a mental health patient at the enhanced outpatient (EOP)

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level of care, his law library access is generally limited to “two and sometimes, but rarely, four

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hours on the weekends” and, because of his EOP placement he was not permitted to call his court

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appointed attorney “during EOP hours of assignment, which were the same hours that the

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plaintiff’s attorney worked in his office.” Third Amended Complaint, filed January 5, 2011, at 3.

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Plaintiff names four defendants in this claim: Kathleen Dickinson, the Warden of CMF; Dr. J.

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Jackson; Mr. Y. Cheng; and Mr. Sanchez.

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In Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court held

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that prison inmates have a constitutionally protected right to access the courts to bring civil rights

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actions to challenge their conditions of confinement and to bring challenges to their criminal

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convictions. Lewis v. Casey, 518 U.S. at 351. The right of access to the courts “guarantees no

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particular methodology but rather the conferral of a capability -- the capability of bringing

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contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356.

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To state a cognizable claim, plaintiff must allege facts which suggest that defendants by their acts

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prevented him from bringing, or caused him to lose, an actionable claim of this type. Id.

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Exhibits appended to the third amended complaint demonstrate that plaintiff

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contended in an administrative grievance submitted in August 2009 that the denial of access to

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the prison law library caused him to lose his criminal appeal and his “only chance of getting a

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new trial.” Ex. A to Third Amended Complaint, at 3. Plaintiff has also appended an order from

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the United States Court of Appeals for the Ninth Circuit, filed July 28, 2009, denying plaintiff’s

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application for leave to proceed with a second or successive habeas corpus petition for failure to

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make a prima facie showing either that the petition would raise a claim that relies on new rule of

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constitutional law made retroactive to cases on collateral review by the U.S. Supreme Court or a

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claim whose factual predicate “could not have been discovered previously through the exercise

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of due diligence” and whose facts “would be sufficient to establish by clear and convincing

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evidence that, but for constitutional error, no reasonable factfinder would have found the

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petitioner guilty of the underlying offense.” Id. at 8.

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While exhibits appended to a pleading are a part thereof for all purposes, see Fed.

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R. Civ. P. 10(c), these two exhibits are insufficient to support a claim of interference with access

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to the courts. Specifically, the allegations in the exhibits are insufficient to suggest that plaintiff

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had one or more actionable claims for federal habeas corpus relief from his criminal conviction,

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or that any alleged limitation on his access to the prison law library caused him to lose such claim

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or claims. For that reason, the court finds that these allegations do not state a cognizable claim

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for interference with plaintiff’s right to access the courts.

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In his second set of allegations, plaintiff alleges that he has been prescribed an

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“extensive amount of medications” while at CMF, some of which have caused adverse effects

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individually, while others have caused adverse effects when mixed with other medications. In

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February 2010, he was given a mixture of medications that had adverse effects when mixed

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together, causing plaintiff to black out in his cell, collapse, and smash his mouth open on the

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corner of his locker. Plaintiff names four defendants in this claim.

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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), cert. denied, 442 U.S.

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941 (1979). Vague and conclusory allegations concerning the involvement of official personnel

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982).

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Three of the defendants named in this claim, Kathleen Dickinson, Dr. J. Bick, and

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Dr. Nicolas Aguilera, are included solely based on their supervisory roles at the prison. Plaintiff

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has failed to state a cognizable claim for relief against these three defendants.

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The fourth defendant named in this claim is Dr. Alex Ziga, the physician who

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allegedly prescribed the medications to which plaintiff had the adverse reaction described. In
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Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that inadequate medical care

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did not constitute cruel and unusual punishment cognizable under § 1983 unless the mistreatment

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

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the Ninth Circuit 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), citing Estelle, 429 U.S. at 105-06.

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There is nothing in the third amended complaint that suggests that Dr. Ziga’s act
of prescribing the medications to plaintiff was the result of deliberate indifference. For that

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reason, plaintiff has failed to state a cognizable claim for relief against Dr. Ziga. Because the

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court cannot find at this time, however, that this defect could not be cured by amendment, the

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court will grant plaintiff an opportunity to amend his complaint.

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If plaintiff chooses to file a fourth amended complaint, plaintiff must demonstrate

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how the conditions complained of have resulted in a deprivation of plaintiff’s constitutional

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rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the fourth amended complaint

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must allege in specific terms how each named defendant is involved. There can be no liability

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under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Furthermore, vague and conclusory allegations of official participation in civil rights

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violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s fourth amended complaint complete. Local Rule 220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a fourth amended complaint, the prior
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complaints no longer serve any function in the case. Therefore, in a fourth amended complaint,

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

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sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s third amended complaint is dismissed; and

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2. Within thirty days from the date of this order, plaintiff shall complete the

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attached Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Fourth Amended Complaint.

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Plaintiff’s fourth amended complaint shall comply with the requirements of the Civil Rights Act,

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

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complaint must bear the docket number assigned this case and must be labeled “Fourth Amended

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Complaint”; failure to file a fourth amended complaint in accordance with this order may result

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in the dismissal of this action.

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DATED: April 29, 2011.

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nels2156.144

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DYKE EDWARD NELSON,

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Plaintiff,

No. 2:10-cv-2156 JFM (PC)

KATHLEEN DICKINSON, Warden,
et al.,

NOTICE OF AMENDMENT

vs.

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Defendants.
____________________________________/

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Plaintiff hereby submits the following document in compliance with the court's
order filed

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:
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Fourth Amended Complaint

DATED:

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Plaintiff
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