Gipbsin v. Kernan, et al

Filing 44

ORDER signed by Magistrate Judge Dale A. Drozd on 8/26/2013 ORDERING that plaintiff's 32 amended complaint is DISMISSED; plaintiff has 30 days to file a second amended complaint; plaintiff's 33 motion to correct the amended complaint is DENIED as unnecessary; plaintiff's 34 motion for appointment of counsel is DENIED; plaintiff's 36 , 38 motion for status conference and motion for pretrial conference are DENIED; plaintiff's 35 motion for a status update and clarification is GRANTED; and the Clerk shall send plaintiff the court's form for filing a civil rights action. (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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CLARENCE A. GIPBSIN,

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Plaintiff,
vs.
SCOTT KERNAN, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action
filed pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint.

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No. 2:12-cv-0556 DAD P

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.
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 AMENDED COMPLAINT

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In plaintiff’s amended complaint, he fails to specify who the named defendants

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are in this action. Plaintiff does allege that various government and prison officials refused to

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properly treat his mental health condition for several years. In this regard, plaintiff alleges that a

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Lassen County Superior Court judge believed he should have been housed in a state mental

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hospital, but that prison officials refused to transfer him to such an institution. As a result,

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plaintiff alleges he was forced to endure conditions at various state prisons where they did not

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provide him with adequate mental health treatment. (Am. Compl. at 1-8 & Attachs.)

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DISCUSSION
The court will dismiss plaintiff’s amended complaint because the court is unable

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to determine whether the current action is frivolous or fails to state a claim for relief. See Fed. R.

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Civ. P. 8(a)(2). In the interests of justice, however, the court will grant plaintiff leave to file a

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second amended complaint. In any second amended complaint plaintiff elects to file, plaintiff

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should specify on the form complaint provided by the court who the defendants are in this case.

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In addition, as the court previously advised plaintiff, he must allege in specific terms how each

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named defendant was involved in the deprivation of plaintiff’s rights. Although the Federal

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Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendants and
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must allege facts that support 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 his claims.

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Id.

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As best as the court can understand, plaintiff’s primary complaint appears to be

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that prison officials failed to transfer him to an institution where he could receive adequate

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mental health treatment. Plaintiff is advised that in Estelle v. Gamble, 429 U.S. 97, 106 (1976),

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the Supreme Court held that inadequate medical care did not constitute cruel and unusual

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punishment cognizable under § 1983 unless the mistreatment rose to the level of “deliberate

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indifference to serious medical needs.” In applying this standard, the Ninth Circuit has held that

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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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The “deliberate indifference” standard also applies in cases involving the

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adequacy of mental health care in prisons. Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir.

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1994); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). To establish unconstitutional

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treatment of a mental health condition, “a prisoner must show deliberate indifference to a

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‘serious’ medical need.” Doty, 37 F.3d at 546 (quoting McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1991)). A medical need is “serious if the failure to treat a prisoner’s condition

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could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”

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Doty, 37 F.3d at 546 (quoting McGuckin, 974 F.2d at 1059).

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If plaintiff chooses to pursue this action by filing a second amended complaint, he

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must allege in specific terms how each defendant was involved in the deprivation of his rights.

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For example, he must specify who he sought mental health treatment from and why their

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treatment was inadequate and amounted to deliberate indifference. In this regard, if a particular
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prison official(s) knew he needed a transfer to a state mental hospital but refused to transfer him,

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he should include such factual allegations in his second amended complaint. As the court

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previously advised plaintiff, there can be no liability under 42 U.S.C. § 1983 unless there is some

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

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

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 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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Plaintiff is reminded that the court cannot refer to prior pleadings in order to make

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his second amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files a second amended complaint, the prior pleading no longer serves

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any function in the case. Therefore, in a second amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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OTHER MATTERS
Plaintiff has filed several motions in this case, which the court will address in

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turn. Shortly after filing his amended complaint, he filed a motion to correct the amended

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complaint. In that motion, plaintiff lists places of employment he omitted for some of the

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defendants. As noted above, however, it is not clear from plaintiff’s amended complaint who all

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of the defendants are in this case. Nor is it clear how each defendant was involved in the

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deprivation of plaintiff’s rights. As such, the amended complaint will be dismissed, and plaintiff

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will have an opportunity to file a second amended complaint. If plaintiff elects to file a second

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amended complaint, he may include on the form complaint the name of each defendant and their

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place of employment. Under these circumstances, plaintiff’s motion to correct the amended

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complaint will be denied as unnecessary.
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In addition, plaintiff has filed a motion for appointment of counsel. The United

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States Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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Plaintiff has also filed a motion for a status conference and a motion for a pretrial

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conference. As discussed above, plaintiff’s amended complaint will be dismissed with leave to

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file a second amended complaint. As such, neither a status conference nor a pretrial conference

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are warranted at this time. Plaintiff is advised that the court will issue a discovery and

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scheduling order in this case at the appropriate time. No motion from plaintiff will be necessary.

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Finally, plaintiff has filed a motion for a temporary restraining order. Plaintiff’s

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motion is difficult to decipher. However, he appears to complain about being placed in

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administrative segregation after prison officials charged him with indecent exposure. Shortly

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after filing his motion, plaintiff was transferred to California State Prison, Sacramento. As such,

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plaintiff is no longer subject to the alleged conditions of which he complains. See Weinstein v.

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Bradford, 423 U.S. 147, 149 (1975); Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995).

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Accordingly, plaintiff’s motion for a temporary restraining order is moot.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint (Doc. No. 32) is dismissed;

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2. Plaintiff is granted thirty days from the date of service of this order to file a

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second amended complaint that complies 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 second amended complaint

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must be on the form complaint provided with this order, must bear the docket number assigned to

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this case, and must be labeled “Second Amended Complaint”; failure to file a second amended

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complaint in accordance with this order will result in dismissal of this action without prejudice;

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3. Plaintiff’s motion to correct the amended complaint (Doc. No. 33) is denied as
unnecessary;

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4. Plaintiff’s motion for appointment of counsel (Doc. No. 34) is denied;

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5. Plaintiff’s motion for a status conference and motion for a pretrial conference

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(Doc. Nos. 36 & 38) are denied;

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6. Plaintiff’s motion for a status update and clarification (Doc. No. 35) is granted;
and

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7. The Clerk of the Court is directed to send plaintiff the court’s form for filing a

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civil rights action.

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DATED: August 26, 2013.

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DAD:9
gipb0556.14am

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