Odom v. Solano County Justice Center Detention Facility et al

Filing 14

ORDER signed by Magistrate Judge Craig M. Kellison on 4/23/2014 DISMISSING plaintiff's amended complaint with leave to amend; and plaintiff shall file a signed second amended complaint within 30 days. (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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RYAN BIGOSKI ODOM,

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No. 2:12-cv-0390-LKK-CMK-P

Plaintiff,
vs.

ORDER

SOLANO COUNTY JUSTICE CENTER
DETENTION FACILITY, et al.,

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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint (Doc. 13).
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. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,
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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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In his amended complaint, plaintiff alleges that Dr. Firman prescribed orthotic

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inserts for his left shoe, which was necessary due to a deformed hip. However, Lt. Marsh and the

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Facility Medical Director, who were the two with the final decision making authority, refused to

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allow him the orthotic. Because of the refusal, he lived with severe pain during his time at the

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Solano County Jail, June 22, 2011, through November 13, 2013. Plaintiff names the Solano

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County Justice Center Detention Facility, Lt. Marsh, the Facility Medical Director as defendants

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to this action.

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II. DISCUSSION
Plaintiff was previously informed what was required to state a claim under 42

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U.S.C. § 1983 for violation of his civil rights. Plaintiff originally named Dr. Firman as a

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defendant in this action. However, it is clear from plaintiff’s amended complaint, that Dr.

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Firman is not the one responsible for refusing to provide plaintiff with his medical device.

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Rather, Dr. Firman actually prescribed the device which others then denied. Therefore, Dr.

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Firman will be dismissed from this action.

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As written, plaintiff has alleged sufficient facts to state a claim against Lt. Marsh

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and the Facility Medical Director. The Director will need to be identified, as only the individual

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who participated in the decision making process at the time can be held responsible. If another

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individual is now holding that position, no liability will attach to that person. However, there are
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other deficiencies in Plaintiff’s amended complaint which must be cured before this case can go

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forward.

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Plaintiff was informed that to state a claim under 42 U.S.C. § 1983, he must allege

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an actual connection or link between the actions of the named defendants and the alleged

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deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423

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U.S. 362 (1976). However, in his amended complaint, plaintiff fails to allege any facts relating

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to the Solano County Justice Center Detention Facility. Municipalities and other local

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government units are among those “persons” to whom § 1983 liability applies. See Monell v.

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Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Counties and municipal government officials are

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also “persons” for purposes of § 1983. See id. at 691; see also Thompson v. City of Los Angeles,

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885 F.2d 1439, 1443 (9th Cir. 1989). A local government unit, however, may not be held

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responsible for the acts of its employees or officials under a respondeat superior theory of

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liability. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Thus, municipal

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liability must rest on the actions of the municipality, and not of the actions of its employees or

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officers. See id. To assert municipal liability, therefore, the plaintiff must allege that the

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constitutional deprivation complained of resulted from a policy or custom of the municipality.

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See id. A claim of municipal liability under § 1983 is sufficient to withstand dismissal even if it

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is based on nothing more than bare allegations that an individual defendant’s conduct conformed

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to official policy, custom, or practice. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d

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621, 624 (9th Cir. 1988). If plaintiff contends the facility itself has violated his rights, he must

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allege facts specifically related to the facility, that meet the requirements set forth above.

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In addition, plaintiff’s amended complaint is not signed. Rule 11 of the Federal

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Rules of Civil Procedure require every pleading to be signed, either by the attorney of record or

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by the party personally if unrepresented. Thus, the amended complaint is insufficient as filed.

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Plaintiff must submit a signed second amended complaint if he wishes to proceed in this action.

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III. CONCLUSION

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Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s amended complaint is dismissed with leave to amend; and

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Plaintiff shall file a signed second amended complaint within 30 days of

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the date of service of this order.

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DATED: April 23, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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