Collier v. Aramark Food Service Provider et al

Filing 7

ORDER signed by Magistrate Judge Dale A. Drozd on 7/18/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of $4.44. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. The Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action.(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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CARL ERIC COLLIER,

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Plaintiff,

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No. CIV S-11-0370 DAD P

vs.
ARAMARK FOOD SERVICES,

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Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915.

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This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule

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302 and 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted an in forma pauperis application that makes the showing

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required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma

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pauperis.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See

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28 U.S.C. §§ 1914(a) & 1915(b)(1). An initial partial filing fee of $4.44 will be assessed by this

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order. See 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate

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agency to collect the initial partial filing fee from plaintiff’s prison trust account and forward it to
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the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of

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twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be collected and forwarded by the appropriate agency to the Clerk of the

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Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in

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full. See 28 U.S.C. § 1915(b)(2).

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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.

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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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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 COMPLAINT
In the present case, plaintiff has identified Aramark Food Services and Solano

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County as the defendants. In his complaint, plaintiff alleges that the defendants served him and

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his fellow inmates the same breakfast bars on a daily basis while he was incarcerated at the
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Solano County Jail. Plaintiff also alleges that the defendants served jail inmates only one hot

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meal instead of two. Finally, plaintiff summarily alleges that Solano County is discriminatory.

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Plaintiff claims that the named defendants have violated his rights under the Eighth Amendment

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and the Fourteenth Amendment. In terms of relief, plaintiff requests monetary damages.

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(Compl. Attach. 4-5.)

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DISCUSSION

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The allegations of plaintiff’s complaint are so vague and conclusory that the court

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is unable to determine whether the current action is frivolous or fails to state a claim for relief.

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The complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to

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the defendants and must allege facts that support the elements of the claim plainly and succinctly.

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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege

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with at least some degree of particularity overt acts which defendants engaged in that support his

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claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

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8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an

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amended complaint.

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If plaintiff chooses to file an amended complaint, he must demonstrate how the

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conditions complained of resulted in a deprivation of his federal constitutional or statutory rights.

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See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in

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specific terms how each named defendant was involved in the deprivation of plaintiff’s rights.

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423

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U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil

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

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Plaintiff is advised that, if he elects to proceed with this action by filing an

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amended complaint, the Eighth Amendment only requires that plaintiff receive food adequate to

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maintain his health. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). “The Eighth

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Amendment requires only that prisoners receive food that is adequate to maintain health; it need

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not be tasty or aesthetically pleasing.” Id. To the extent that plaintiff wishes to proceed on an

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Eighth Amendment claim, he will need to allege facts showing that objectively he suffered a

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sufficiently serious constitutional deprivation and that subjectively each defendant had a culpable

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state of mind in allowing or causing the plaintiff’s deprivation to occur. Wilson v. Seiter, 501

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U.S. 294, 298-99 (1991). In this regard, plaintiff will need to allege how the food he received at

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the jail denied him “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman,

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452 U.S. 337, 347 (1981).

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To the extent that plaintiff wishes to proceed on a Fourteenth Amendment equal

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protection claim, he is advised that the Equal Protection Clause “is essentially a direction that all

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persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living

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Center, 473 U.S. 432, 439 (1985). To state a cognizable claim under the Equal Protection

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Clause, a prisoner “must plead intentional unlawful discrimination or allege facts that are at least

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susceptible of an inference of discriminatory intent.” Byrd v. Maricopa County Sheriff’s Dep’t,

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565 F.3d 1205, 1212 (9th Cir. 2009) (quoting Monteiro v. Tempe Union High School District,

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158 F.3d 1022, 1026 (9th Cir. 1998)). “Intentional discrimination means that a defendant acted

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at least in part because of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082

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(9th Cir. 2003) (emphasis in original) (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404

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(9th Cir. 1994)). If plaintiff elects to file an amended complaint, he will need to allege facts

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clarifying how Solano County or its policies, customs, or practices had the effect of treating him

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differently from similarly situated inmates. In his original complaint, plaintiff seems to

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acknowledge that he and all of his fellow inmates were treated the same in that they all received

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the same repetitive breakfast bars and cold food.
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Plaintiff is informed that the court cannot refer to a prior pleading in order to

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

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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

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complaint, 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 application to proceed in forma pauperis (Doc. No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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Plaintiff is assessed an initial partial filing fee of $4.44. All fees shall be collected and paid in

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accordance with this court’s order to the Director of the California Department of Corrections

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and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an

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

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Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned to this case and must be labeled “Amended Complaint”; failure to file an

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed without prejudice.

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5. 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: July 18, 2011.

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DAD:9
coll0370.14

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