Parthemore v. Kissel, et al
Filing
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ORDER signed by Magistrate Judge Allison Claire on 11/20/2013 ORDERING that defendant Blackwell is DISMISSED with leave to amend within 30 days, plaintiff is not obligated to amend his complaint; service is appropriate for defendants B. Kissel, J. So ltanian, C. Thomas, K. Costa, J. Sherrard, C. Heintschel, L. Reaves, Smith; S. Heatley, K. Toor, K. Malakka, P. Virk, and T. Neal; the Clerk shall provide plaintiff with forms for service which plaintiff may complete and return within 30 days; plaintiff shall return the Notice of Submission or Amendment with response.(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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IRA DON PARTHEMORE,
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No. 2:13-cv-0819 KJM AC P
Plaintiff,
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v.
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B. KISSEL, et al.,
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ORDER
Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed
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pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action in the Northern District and the case
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was subsequently transferred. ECF Nos. 8, 9. Plaintiff was granted in forma pauperis status and
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leave to file an amended complaint in compliance with L.R. 220. ECF No. 14. Plaintiff has filed
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an amended complaint. ECF No. 21.
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The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 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.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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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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A complaint (or amended complaint) must contain more than a “formulaic recitation of
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the elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to
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relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The
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pleading must contain something more . . . than . . . a statement of facts that merely creates a
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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal
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Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
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v. Iqbal, 566 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting 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 draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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In reviewing a complaint under this standard, the court must accept as true the allegations
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of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96
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S. Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve
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all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843
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(1969).
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The amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983
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and 28 U.S.C. § 1915A(b) for retaliation in the form of an adverse transfer against the following
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defendants at Mule Creek State Prison: B. Kissel; J. Soltanian; C. Thomas; K. Costa; J. Sherrard;
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C. Heintschel; L. Reaves. Plaintiff also makes colorable claims of deliberate indifference to
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serious medical conditions against MCSP defendants Soltanian; C. Smith; S. Heatley; and Valley
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State Prison defendants K. Toor; K. Malakka; P. Virk; T. Neal. If the allegations of the amended
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complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
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However, although MCSP Correctional Counselor II J. Blackwell is also named as a
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defendant, no allegations against him or her are set forth within the body of the amended
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complaint. Rule 8 of the Federal Rules of Civil Procedure require “sufficient allegations to put
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defendants fairly on notice of the claims against them.” McKeever v. Block, 932 F.2d 795, 798
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(9th Cir. 1991)). Therefore, this defendant must be dismissed, but plaintiff is granted leave to
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amend.
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Plaintiff is not obligated to file a second amended complaint. Should he elect to do so,
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plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of
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plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, any
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second amended complaint must allege in specific terms how each named defendant is involved.
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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or
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connection between a defendant=s actions and the claimed deprivation. Rizzo v. Goode, 423
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U.S. 362, 96 S.Ct. 598 (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). Furthermore, vague and conclusory allegations of
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official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents,
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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 order to
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make plaintiff’s second 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 Lacey v. Maricopa
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County, 693 F.3d 896, 927 (9th Cir. 2012) (“the general rule is that an amended complaint
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super[c]edes the original complaint and renders it without legal effect... .”) Once plaintiff files an
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amended complaint, the original or earlier amended pleading no longer serves any function in the
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case. Therefore, in an amended complaint, as in an original or earlier amended complaint, each
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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. Defendant Blackwell is dismissed with leave to amend. Within thirty days of service
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of this order, plaintiff may amend his complaint to attempt to state cognizable claims against
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defendant Blackwell. Plaintiff is not obliged to amend his complaint.
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2. The allegations in the pleading are sufficient to state cognizable claims against
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defendants B. Kissel; J. Soltanian; C. Thomas; K. Costa; J. Sherrard; C. Heintschel; L. Reaves;
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Smith; S. Heatley; K. Toor; K. Malakka; P. Virk; T. Neal. See 28 U.S.C. § 1915A. With this
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order the Clerk of the Court shall provide to plaintiff a blank summons, a copy of the pleading
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(ECF No. 21) filed September 13, 2013, thirteen (13) USM-285 forms and instructions for service
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of process on the thirteen defendants named immediately above. Within thirty days of service of
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this order plaintiff may return the attached Notice of Submission of Documents with the
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completed summons, the completed USM-285 forms, and fourteen (14) copies of the endorsed
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amended complaint filed September 13, 2013. Plaintiff need not attempt service on defendants
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and need not request waiver of service. Upon receipt of the above-described documents, the court
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will direct the United States Marshal to serve the above-named defendants pursuant to Federal
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Rule of Civil Procedure 4 without payment of costs. In this event, the court will construe
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plaintiff’s election to proceed forthwith as consent to an order dismissing defendant Blackwell
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without prejudice.
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3. Failure to comply with this order will result in a recommendation that this action be
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dismissed.
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DATED: November 20, 2013
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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IRA DON PARTHEMORE,
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No. 2:13-cv-0819 KJM AC P
Plaintiff,
v.
NOTICE OF SUBMISSION OF
DOCUMENTS
B. KISSEL, et al.,
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Defendants.
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Plaintiff hereby submits the following documents in compliance with the court's order
filed _____________________ :
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_1__
completed summons form
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completed USM-285 forms
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_14 _
copies of the _September 13, 2013___
Amended Complaint
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Plaintiff consents to the dismissal of defendant Blackwell without prejudice.
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Plaintiff opts to file a second amended complaint and delay service of process.
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DATED:
___________________________________
Plaintiff
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