Taylor v. Fowell et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/26/13 ORDERING that Plantiff's Amended Complaint 9 is DISMISSED; Plaintiff is GRANTED thirty days from the date of service of this order to file a Second Amended Complaint.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARD TAYLOR,

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Plaintiff,

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vs.
FOWELL, DEPUTY #2358, et al.,

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Defendants.

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ORDER
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No. 2:12-cv-2901 JAM CKD PS

Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has
filed an amended complaint.

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if

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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2). 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 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.

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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, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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

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“A 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, 129

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S. Ct. at 1949. 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 complaint so vague and conclusory

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that it is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The court has determined that the complaint does not contain a short and plain statement

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as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff

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must allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff’s claim. Id. Because plaintiff has failed to comply with the requirements of

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Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to

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file a second amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the

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jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil

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Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted

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in a deprivation of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
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Plaintiff has previously been advised of the requirements for pleading a cause of

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action under 42 U.S.C. § 1983, and more specifically, for stating a claim for violation of

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plaintiff’s rights under the Eighth Amendment. In this case, plaintiff names as the sole defendant

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Deputy Fowell. There are no allegations linking this defendant to any alleged violations of

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plaintiff’s civil rights. Moreover, plaintiff’s allegations are insufficient to state a claim under

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section 1983 for violation of plaintiff’s Eighth Amendment rights. Plaintiff alleges that he was

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injured on September 28, 2012 due to an assault by another inmate. Plaintiff does not allege that

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the assault was due to any actions on the part of defendant. Plaintiff complains that a chest x-ray

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was taken on October 1, 2012 and not read until October 4, 2012, at which time it was

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discovered plaintiff had suffered two broken ribs. A three day delay by medical personnel in

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reading a radiological study is not deliberate indifference. Plaintiff also complains that he was

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prescribed under “Miscellaneous Medical Needs” a lower tier and lower bunk but that such was

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not provided to him until October 9, 2012 after he filed a grievance. Assuming arguendo that an

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eight day delay constitutes deliberate indifference to serious medical needs, plaintiff fails to

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allege that defendant had any control over plaintiff’s cell assignment. See Taylor v. List, 880

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F.2d 1040, 1045 (9th Cir.1989) (plaintiff must show personal involvement in alleged violations).

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In addition, although plaintiff alleges that he was ultimately diagnosed with pneumonia on

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November 25, 2012, plaintiff fails to allege that the delay in providing him with a lower tier and

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lower bunk led to further injury from his broken ribs. See Hallett v. Morgan, 296 F.3d 732, 746

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(9th Cir. 2002) (prisoner alleging delay of medical treatment evinces deliberate indifference must

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show delay led to further injury).

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Plaintiff is reminded that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each 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 amended complaint 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 Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket

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number assigned this case and must be labeled “Second Amended Complaint”; plaintiff must file

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an original and two copies of the second amended complaint; failure to file a second amended

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complaint in accordance with this order will result in a recommendation that this action be

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dismissed.

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Dated: February 26, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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