Ames v. Virga et al

Filing 24

ORDER signed by Magistrate Judge John F. Moulds on 2/26/13 ORDERING that Plaintiffs second amended complaint is DISMISSED with 30 days leave to amend. The findings and recommendations entered February 17, 2012 (Dkt. No. 9 ) which recommended that this action be dismissed for plaintiffs failure to file an amended complaint are VACATED.(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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BRYON AMES,
Plaintiff,

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vs.
TIM VIRGA, et al.,
Defendants.

ORDER
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No. 2: 11-cv-3197 KJM JFM (PC)

Plaintiff is a state prisoner proceeding in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. On December 14, 2012, counsel was appointed for the limited

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purpose of filing a second amended complaint. Plaintiff, proceeding through limited purpose

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appointed counsel, filed a second amended complaint on February 12, 2013.

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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

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be 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
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fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

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1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based

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on an indisputably meritless legal theory or where the factual contentions are clearly baseless.

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Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d

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639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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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, 556 U.S. 662, 678 (2009). Furthermore, a claim

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

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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, 556

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U.S. at 678. 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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The court finds the allegations in plaintiff’s second amended complaint so vague

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and conclusory that it fails to state a claim upon which relief can be granted. Although the

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Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support plaintiff’s claim. Id.

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Plaintiff’s second amended complaint alleges that plaintiff was placed in custody
at the Tehama County Jail in March 2010. While there, he began suffering abdominal pain,
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rectal bleeding and discovered lumps in his abdomen. He claims that he was not seen by a

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specialist until March 2011, or approximately one year after notifying the Tehama County Jail

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defendants of his condition. In April 2011, plaintiff was diagnosed with colon cancer. He was

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subsequently transferred to California State Prison - Sacramento and approved for surgery and

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chemotherapy. Plaintiff asserts that he has received surgery but not chemotherapy.

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When prison officials are deliberately indifferent to the serious medical needs of

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those under their control, the Eighth Amendment proscription against cruel and unusual

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punishment is violated. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A determination of

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deliberate indifference requires an examination of two elements: (1) the seriousness of the

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prisoner's medical needs; and (2) the nature of the defendant's response to that need. McGuckin

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v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). To establish deliberate indifference, the prison

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official must know of, and disregard, an excessive risk to the patient’s health and safety.

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Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004). The prison official must not only be

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aware of facts from which the inference could be drawn that a substantial risk of serious harm

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exists, but actually draw the inference. Id.

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The court finds the allegations in plaintiff’s second amended complaint to be

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insufficient to state a claim under the Eighth Amendment against the named twenty-one

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defendants. The Civil Rights Act under which this action is 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 action at law,
suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statue 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. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of

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§ 1983, if he does an affirmative act, participates in another’s affirmative acts or omits to
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perform an act which he is legally required to do that causes the deprivation of which complaint

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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 supervisory 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).

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While the second amended complaint asserts that plaintiff was suffering from a
serious medical need, it does not allege with at least some degree of particularity overt acts

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which the specific defendants engaged in that support plaintiff's claim. Id. (emphasis added).

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Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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amended complaint must be dismissed. The court will, however, grant leave to file a third

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amended complaint.

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If plaintiff chooses to file a third 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

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defendant’s actions and the claimed deprivation. See Rizzo v. Goode, 423 U.S. 362 (1976);

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May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at 743. Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. Ivey v. Bd. 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 third 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 third amended complaint, the

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second amended complaint no longer serves any function in the case. Therefore, in a third

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amended complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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

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1. Plaintiff’s second amended 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 Third Amended Complaint.

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Plaintiff’s third amended complaint shall comply with the requirements of the Civil Rights Act,

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

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

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Complaint”; failure to file a third amended complaint in accordance with this order may result in

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the dismissal of this action.

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3. The findings and recommendations entered February 17, 2012 (Dkt. No. 9.)

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which recommended that this action be dismissed for plaintiff’s failure to file an amended

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complaint are VACATED.

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DATED: February 26, 2013.

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ames3197.14.amd.new

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYON AMES,
Plaintiff,

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No. 2: 11-cv-3197 KJM JFM (PC)

vs.
TIM VIRGA, et al.,

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Defendants.

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___________________________/

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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

Third Amended Complaint

DATED:

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Plaintiff
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