Ogg v. Weiss et al

Filing 6

ORDER signed by Magistrate Judge Craig M. Kellison on 6/6/2011 ORDERING that Pltf's 5 First Amended Complaint is DISMISSED. Pltf is GRANTED 30 days to file a Second Amended Complaint. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROSE OGG,
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Plaintiff,

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vs.
DANIEL WEISS, et al.,

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Defendants.

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ORDER
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No. CIV S-11-791 KJM CMK (TEMP) PS

Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has
filed an amended complaint.

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if

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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(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.
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In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other

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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Plaintiff’s original complaint was dismissed because it was vague and conclusory.

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The amended complaint does not cure the deficiencies evident in the original complaint.

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Plaintiff was previously advised that an attorney acting in this capacity is not a state actor against

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whom a civil rights action can lie under the Civil Rights Act, 42 U.S.C. § 1983. Although the

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amended complaint is not barred by the statute of limitations on its face because plaintiff omits

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any mention of the date of the alleged incident giving rise to plaintiff’s claims, the court takes

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judicial notice of the original complaint in which plaintiff alleges the incident occurred in 2003.

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Plaintiff makes no allegation in the amended complaint that would overcome the obvious bar of

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the statute of limitations. In addition, plaintiff is advised that as against the named defendant

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officers, there is no constitutional right to have police officers transport plaintiff for emergency

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medical treatment when the plaintiff is not under arrest. It appears plaintiff cannot cure the

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deficiencies in the pleadings. However, the court will grant one final opportunity to amend the

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complaint.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the

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jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil

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Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted

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in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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Plaintiff is again advised that 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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In addition, plaintiff is 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
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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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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff's amended complaint is dismissed; and

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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 Federal Rules of Civil

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

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number assigned this case and must be labeled "Second Amended Complaint"; plaintiff must file

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an original and two copies of the second amended complaint; failure to file a second amended

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

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dismissed.

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DATED: June 6, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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ogg2.lta

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