Strong v. Solano County Sheriff's Department et al

Filing 10

ORDER signed by Magistrate Judge John F. Moulds on 10/11/11 ORDERING that plaintiff's amended complaint is DISMISSED with 30 days to file a second 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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JOVAN STRONG,

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Plaintiff,

No. 2:11-cv-1916 KJM JFM (PC)

vs.
SOLANO COUNTY
SHERIFF’S DEPARTMENT
(MEDICAL STAFF),
Defendants.

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ORDER
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Plaintiff is a pretrial detainee in a county jail proceeding pro se and in forma

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pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed August 1, 2011,

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plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has now

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filed an amended complaint.

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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. 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, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355

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U.S. 41, 47 (1957)). 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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id. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘“give the

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

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v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn

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quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this

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standard, the court must accept as true the allegations of the complaint in question, Erickson, id.,

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and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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Plaintiff alleges generally that the Solano County Sheriff’s Department has failed

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to provide him with proper medical care. He alleges that he has “repeatedly made request for

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medical attention” and that he “feel(s) that [he] has been made with deliberate indifference to

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serious medical needs....” Amended Complaint, filed August 30, 2011, at 4. Plaintiff names two

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defendants: the Facility Administrator Lt. Rod Marsh, and Dr. James Firman.
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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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Plaintiff has included Lt. Marsh in this action based solely on his supervisory role

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as Facility Administrator. See Amended Complaint at 3. For that reason, the amended

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complaint does not state a cognizable claim for relief against Lt. Marsh.

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Plaintiff’s sole allegation against Dr. Firman “is the head physician of this facility

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and personally made the final judgments in dealing with my medical issues.” Id. at 4. Although

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the court can glean that plaintiff is attempting to allege that his constitutional rights are being

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violated by inadequate medical care, the allegations in plaintiff’s amended complaint are so
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vague and conclusory that it is unable to determine whether the current action is frivolous or fails

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to state a claim for relief. The court has determined that the amended complaint does not contain

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a “short and plain statement of the claim showing the pleader is entitled to relief” as required by

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Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint

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must give fair notice and state the elements of the claim plainly and succinctly. Jones v.

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

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least some degree of particularity overt acts which defendants engaged in that support plaintiff's

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

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

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second amended complaint.

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If plaintiff chooses to file a second 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 second 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 defendant's

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

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633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Furthermore, vague and conclusory allegations of official participation in civil rights violations

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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 second 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 second amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in a second amended

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

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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. 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 Second Amended Complaint.

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Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights

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

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

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

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may result in the dismissal of this action.

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DATED: October 11, 2011.

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stro1916.142

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOVAN STRONG,

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Plaintiff,
vs.
SOLANO COUNTY
SHERIFF’S DEPARTMENT
(MEDICAL STAFF),

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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-1916 KJM JFM (PC)

:
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Second Amended Complaint

DATED:

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Plaintiff

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