Koivisto v. Walker et al

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/2/12 ORDERING that Plaintiff's request to proceed in forma pauperis 2 is granted; The complaint is dismissed with leave to amend within 30 days. The amended complaint must bear the docke t number assigned to this case and be titled "First Amended Complaint." Failure to comply with this order will result in a recommendation that this action be dismissed. If plaintiff files an amended complaint stating a cognizable claim the court will proceed with service of process by the United States Marshal. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TAUNO A. KOIVISTO, III,

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Plaintiff,

No. 2:12-cv-0772 EFB P

vs.
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JIMMY WALKER, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma

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pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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I.

Request to Proceed In Forma Pauperis

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Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Dckt. No. 2. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and

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(2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to

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collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[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, 129 S. Ct. 1937, 1949 (2009).
Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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III.

Screening Order

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Pursuant to § 1915A, the court has reviewed plaintiff’s complaint and finds that it must

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be dismissed because it does not comply with Rule 8 or state a claim upon which relief may be

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granted.

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Rule 8 rule requires the pleader to set forth his averments in a simple, concise, and direct

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manner. Aside from the section of the complaint listing the parties, the complaint consists of a

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single paragraph, hand-written and single spaced, spanning 43 pages. The allegations are so

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vague and conclusory that the court cannot determine where one alleged incident giving rise to a

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claim stops and another begins. As drafted, the complaint hardly provides defendants with “fair

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notice” of plaintiff’s claims against them. Rather than submitting a “short and plain statement”

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of his claims, plaintiff has submitted a complaint that is so prolix and convoluted that the court

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cannot reasonably discharge its screening responsibility under § 1915A. Plaintiff must therefore

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file an amended complaint that complies with the pleading requirements set forth in Rule 8. See

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McNeil v. United States, 508 U.S. 106, 113 (1993) (federal rules apply to all litigants, including

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prisoners lacking access to counsel); Crawford-El v. Britton, 523 U.S. 574, 598 (1998)

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(encouraging “firm application” of federal rules in prisoner cases); McHenry v. Renne, 84 F.3d

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1172, 1177-78 (9th Cir. 1996) (affirming Rule 8 dismissal of complaint that was “argumentative,

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prolix, replete with redundancy, and largely irrelevant” and providing an example of a properly-

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pleaded claim, which could be “read in seconds and answered in minutes”). Although the

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Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the

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elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646,

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649 (9th Cir. 1984). In an amended complaint, plaintiff need only provide a short and plain

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statement of his claim(s) showing that he is entitled to relief.

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Should plaintiff choose to file an amended complaint, the amended complaint must

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clearly set forth the claims and allegations against each defendant. It must also adhere to the

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following requirements:
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The amended complaint must be written or typed so that it is complete in itself without

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reference to any earlier filed complaint. L.R. 220. This is because an amended complaint

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supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed

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complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467,

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1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated

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thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). Any

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amended complaint may not change the nature of this suit by alleging new, unrelated claims.

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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The complaint must identify as a defendant only persons who personally participated in a

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substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional

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right if he does an act, participates in another’s act or omits to perform an act he is legally

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required to do that causes the alleged deprivation).

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It must also contain a caption including the name of the court and the names of all
parties. Fed. R. Civ. P. 10(a).

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It appears that plaintiff intends to file this lawsuit on behalf of other inmates. See Dckt.

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No. 1 at 1 (listing names of additional plaintiffs). However, an inmate who is not a lawyer

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cannot represent other inmates in court. See Johns v. County of San Diego, 114 F.3d 874, 876

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(9th Cir. 1997); C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987) (non-attorney

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has a right to appear pro se on his own behalf, but “has no authority to appear as an attorney for

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others”). In an amended complaint, plaintiff may not bring claims on behalf of anyone but

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himself.
Because it appears that plaintiff intends to state claims based on deliberate indifference to

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medical needs or based on the mishandling of his administrative appeals, the court also informs

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plaintiff of the following legal standards:

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To state a claim pursuant to § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting

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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection

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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

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Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable for

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the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must

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plead that each Government- official defendant, through the official’s own individual actions,

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has violated the Constitution.” Id. It is plaintiff’s responsibility to allege facts to state a

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plausible claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969

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(9th Cir. 2009).

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To state a claim for violation of the Eighth Amendment based on inadequate medical

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care, plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail,

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plaintiff must show both that his medical needs were objectively serious, and that defendant

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possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991);

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McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical need is one that

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significantly affects an individual’s daily activities, an injury or condition a reasonable doctor or

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patient would find worthy of comment or treatment, or the existence of chronic and substantial

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pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other

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grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc). It is important

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to differentiate common law negligence claims of malpractice from claims predicated on

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violations of the Eight Amendment’s prohibition of cruel and unusual punishment. In asserting
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the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this

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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing

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Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391 F.3d 1051,

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1057 (9th Cir. 2004). Moreover, it is well established that mere differences of opinion

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concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation.

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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344

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(9th Cir. 1981).

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There are no constitutional requirements regarding how a grievance system is operated.

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See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner’s claimed loss

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of a liberty interest in the processing of his appeals does not violate due process because

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prisoners lack a separate constitutional entitlement to a specific prison grievance system).

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IV.

Order

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Accordingly, the court hereby orders that:

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1. Plaintiff’s request to proceed in forma pauperis (Dckt. No. 2) is granted.

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2. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in a recommendation that this action be

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dismissed. If plaintiff files an amended complaint stating a cognizable claim the court will

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proceed with service of process by the United States Marshal.

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Dated: August 2, 2012.

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