Dean v. Wong

Filing 24

ORDER signed by Magistrate Judge Kendall J. Newman on 1/4/2012 ORDERING that plaintiff's complaint is DISMISSED; within 30 days, plaintiff shall complete and return the Notice of Amendment with 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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ALTON E. DEAN,

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Plaintiff,
vs.
S.H. WONG, et al.,
Defendants.

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No. 2: 11-cv-2152 KJN P

ORDER
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Plaintiff is a state prisoner proceeding without counsel. Pending before the court
is plaintiff’s complaint filed December 23, 2011.
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).

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Named as defendants are Dr. Wong, Correctional Officer Casey and Warden

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Socorro. These defendants are located at the Deuel Vocational Institution (“DVI”). Also named

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as a defendant is the Director of the California Department of Corrections and Rehabilitation

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(“CDCR”).

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Plaintiff alleges that he suffered “adverse effects” as a result of receiving
“inadequate prescriptions” for dilantin and pain medication. Plaintiff alleges that defendant
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Casey forced him out of his wheelchair for over twenty days in order to harass plaintiff by

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searching his wheel chair cushion.

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Plaintiff does not allege that any defendant was involved in the deprivation of pain
medication and dilantin.
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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Because plaintiff has failed to link any defendant to his claim regarding the denial

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of pain medication and dilantin, this claim is dismissed with leave to amend. If plaintiff files an

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amended complaint, he must also allege when the alleged deprivation of medication occurred.

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Plaintiff alleges that defendant Casey searched his wheelchair over twenty

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different days in order to harass him. However, plaintiff does not allege when this occurred. In

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other words, it is not clear if plaintiff is claiming that these searches occurred over twenty

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consecutive days. If plaintiff files an amended complaint, he must allege when the searches

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occurred. Plaintiff also does not allege that he suffered any injury as a result of having his wheel

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chair searched. In addition, while plaintiff alleges that defendant Casey intended to harass

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plaintiff when he searched his wheel chair, plaintiff offers no facts in support of this conclusory

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claim. Accordingly, the claims against defendant Casey are dismissed with leave to amend. If

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plaintiff files an amended complaint, he must allege when defendant Casey allegedly searched

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his wheel chair, and what harm plaintiff allegedly suffered as a result.

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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
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). Once plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an

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

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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 complaint is dismissed.

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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 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: January 4, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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dean2152.dis

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALTON E. DEAN,

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Plaintiff,
vs.
S.H. WONG, 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-2152 KJN P

:
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Amended Complaint

DATED:

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Plaintiff
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