Gullatt v. Kelso et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 5/16/2011 ORDERING that pltf's 2 request to proceed IFP is GRANTED; pltf to pay the $350.00 filing fee w/ an initial partial filing fee in accordance w/ the concurrent CDC order; pltf's cmplt is DISMISSED; w/in 30 days, pltf shall complete and return the Notice of Amendment w/ the required documents. (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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JOHN GULLATT,

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Plaintiff,
vs.
J. CLARK KELSO, et al.,
Defendants.

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No. 2:11-cv-1229 KJN P

ORDER
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief

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pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to

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28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1)

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and Local Rule 302.

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Plaintiff has submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court

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will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s prison

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trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to
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make monthly payments of twenty percent of the preceding month’s income credited to

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plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to

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the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing

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fee is paid in full. 28 U.S.C. § 1915(b)(2).

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

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against a governmental entity or officer or employee of a governmental entity. 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.

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28 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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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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)). In order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,

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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept

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as true the allegations of the complaint in question, id., and construe the pleading in the light

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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff alleges defendant J. Clark Kelso, federal receiver, Prison Health Care

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Services, “ignored the rights of prisoners, and only slowed up the process,” and was “neglectful

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in his duty to ensure that no prisoner faces cruel and unusual punishment.” (Dkt. No. 1 at 2-3.)

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Plaintiff alleges Dr. Rallos “has been very unprofessional in dealing with petitioner,” and denied

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petitioner an MRI. (Dkt. No. 1 at 3.) Plaintiff claims defendant McPherson “was aware, and

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participated in the denial of medical necessit[ies] in which petitioner was in extreme pain.” (Id.)

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Petitioner alleges defendant Walker “allowed a continued abuse of pain and suffering through the

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denial of medical and medical procedures.” (Dkt. No. 1 at 4.)

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The Civil Rights Act under which this action was filed provides as follows:
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, 692 (1978) (“Congress did not intend

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§ 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976)

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(no affirmative link between the incidents of police misconduct and the adoption of any plan or

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policy demonstrating their authorization or approval of such misconduct). “A person ‘subjects’
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another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

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affirmative act, participates in another's affirmative acts or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v.

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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) (no liability where there is no allegation of personal participation); Mosher v.

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Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where

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there is no evidence of personal participation). Vague and conclusory allegations concerning the

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involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board

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of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of

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personal participation is insufficient).

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Therefore, plaintiff's Eighth Amendment claim against defendant Kelso is not

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cognizable under § 1983 unless plaintiff alleges facts demonstrating that the actions of defendant

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Kelso constituted “deliberate indifference to his serious medical needs.” Estelle, 429 U.S. at

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106. As presented in his complaint, plaintiff’s allegations against defendant Kelso appear to be

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based solely on a theory of respondeat superior and negligence, and therefore should not be

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included in any amended complaint.

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Plaintiff is advised that to present a viable claim for inadequate medical care

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under the Eighth Amendment, plaintiff must allege facts demonstrating that defendants’ alleged

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mistreatment rose to the level of “deliberate indifference to [his] serious medical needs.” Estelle

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v. Gamble, 429 U.S. 97, 106 (1976). In this regard, the Ninth Circuit has explained that “the

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indifference to [a plaintiff’s] medical needs must be substantial.” Broughton v. Cutter Lab., 622

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F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). “Mere indifference,
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negligence, or medical malpractice,” is insufficient to demonstrate deliberate indifference to

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serious medical needs. Broughton, 622 F.2d at 460 (internal quotes omitted). Mere differences

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of opinion between a prisoner and prison medical staff as to appropriate medical care also do not

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give rise to a § 1983 claim. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Thus, it is

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insufficient that a defendant was aware, knew or should have known, of some alleged

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constitutional violation. Plaintiff must provide factual allegations sufficient to plausibly suggest

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that a defendant “participated in or directed the violations, or knew of the violations and failed to

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act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); see Ashcroft v. Iqbal,

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129 S.Ct. 1937, 1952 (2009) (“While legal conclusions can provide the framework of a

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complaint, they must be supported by factual allegations.”) Plaintiff refers generally to a denial

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of medical care, and references various medical problems with his back, knee, and pain, but fails

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to provide sufficient factual support for his medical claims against each defendant or to

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demonstrate deliberate indifference.

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The court finds the allegations in plaintiff’s complaint so vague and conclusory

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that it is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The court has determined that the complaint does not contain a short and plain statement

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

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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

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

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support plaintiffs claim. Id. Because plaintiff has failed to comply with the requirements of Fed.

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

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an amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights.

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Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms
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how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983

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unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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

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pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that

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

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requirement exists because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (original complaint is treated as

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non-existent after filing of amended complaint). Once plaintiff files an amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in an 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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Finally, plaintiff has provided 55 pages of exhibits with his original complaint.

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Plaintiff is advised that he need not re-file his exhibits with any amended complaint. Now that

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plaintiff’s exhibits are on file, any party may refer to the exhibits.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis 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 in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.
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4. Within thirty days from the date of this order, plaintiff shall complete the
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 Amended Complaint.

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Plaintiff’s amended complaint shall comply 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 amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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DATED: May 16, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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gull1229.14

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN GULLATT,

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Plaintiff,
vs.
J. CLARK KELSO, et al.,

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

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NOTICE OF AMENDMENT

Defendants.

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No. 2:11-cv-1229 KJN P

:
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Amended Complaint

DATED:

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Plaintiff
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