Jones v. Jaffe et al

Filing 9

ORDER signed by Magistrate Judge Dale A. Drozd on 3/12/2012 ODERING that plaintiff's 7 motion to proceed IFP is GRANTED; plaintiff to pay the $350.00 filing fee in accordance with the concurrent CDC order; plaintiff's complaint is DISMISSED; plaintiff has 30 days to file an amended complaint; the clerk to send plaintiff the form for filing a civil rights action; and plaintiff's 8 motion for default judgment is DENIED.. (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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HENRY A. JONES,

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Plaintiff,

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vs.

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No. CIV S-11-2049 LKK DAD P

DR. JAFFE et al.,

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Defendants.

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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). Plaintiff has been without funds for six months and is

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currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28

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U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of
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the preceding month’s income credited to plaintiff’s prison trust account. These payments shall

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be collected and forwarded by the appropriate agency to the Clerk of the Court each time the

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amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C.

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§ 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

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In the present case, in his difficult to decipher complaint plaintiff has identified as

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defendants Dr. Jaffe, Dr. O’Neil, and DOES 1-10. Plaintiff appears to allege that he suffers from

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mental health conditions as well as insomnia. He also alleges that at some unspecified time,

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defendant Dr. Jaffe prescribed him Seroquel, and that at some other unspecified time, defendant
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Dr. O’Neil told him he needed a pacemaker and surgically implanted one. Subsequently,

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plaintiff alleges that he saw a doctor at U.C. Davis who told him he would not have needed the

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pacemaker had he simply stopped taking Seroquel. Plaintiff claims that defendants Dr. Jaffe and

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Dr. O’Neil as well as anyone who prescribed and dispensed him Seroquel have violated his

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constitutional rights. (Compl at 1-5 & Exs.)

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DISCUSSION
The allegations in 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 allege facts

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demonstrating how the conditions complained of resulted in a deprivation of his federal

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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The

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amended complaint must allege in specific terms how each named defendant was involved in the

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deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of

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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982).
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Insofar as plaintiff is attempting to assert an Eighth Amendment claim he is

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advised that in Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that

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inadequate medical care did not constitute cruel and unusual punishment cognizable under

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§ 1983 unless the mistreatment rose to the level of “deliberate indifference to serious medical

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needs.” In general, deliberate indifference may be shown when prison officials deny, delay, or

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intentionally interfere with medical treatment, or may be shown by the way in which prison

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officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir.

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1988).

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In any amended complaint plaintiff elects to file, he will need to allege facts

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demonstrating how defendants’ actions rose to the level of “deliberate indifference.” Plaintiff is

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cautioned, however, that mere differences of opinion between a prisoner and prison medical staff

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or between medical professionals as to the proper course of treatment for a medical condition do

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not give rise to a § 1983 claim. See Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1058 (9th

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Cir. 2004) ; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d

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240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In addition,

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before it can be said that a prisoner’s civil rights have been abridged, “the indifference to his

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medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’

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will not support this cause of action.” Broughton v. Cutter Lab., 622 F.2d 458, 460 (9th Cir.

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1980) (citing Estelle, 429 U.S. at 105-06).

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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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OTHER MATTERS

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Also pending before the court is plaintiff’s motion for default judgment. Under

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Rule 55(a) of the Federal Rules of Civil Procedure, the court may enter a default judgment

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against a party who fails to plead or otherwise defend. In this case, the court has not ordered

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service of plaintiff’s complaint on any defendant, so no defendant is required to plead or

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otherwise defend in this case at this time. Accordingly, plaintiff’s motion for entry of default

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judgment will be denied.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 7) 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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The fee shall be collected and paid in accordance with this court’s order to the Director of the

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California Department of Corrections 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
civil rights action.

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6. Plaintiff’s motion for a default

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judgment (Doc. No. 8) is denied.

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DATED: March 12, 2012.

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DAD:9
jone2049.14a

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