Alford v. Dang, et al.
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 2/9/2015 GRANTING plaintiff's 10 request to proceed IFP; DENYING plaintiff's 3 "motion requesting court to issue order for the full names of defendants"; and the complaint is DISMISSED with leave to amend within 30 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TRACY FIDEL ALFORD,
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Plaintiff,
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v.
No. 2:14-cv-714-KJM-EFB P
SCREENING ORDER AND ORDER
GRANTING IFP
LAM DANG, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in
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forma pauperis and a “motion requesting court to issue order for the full names of defendants.”
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I.
Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
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Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).
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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect
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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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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include 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 Atl. Corp. v.
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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,
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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S.
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Ct. 1937, 1949 (2009).
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To avoid dismissal for failure to state a claim a complaint must contain more than “naked
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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of
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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of
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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,
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129 S. Ct. at 1949.
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Furthermore, a claim upon which the court can grant relief must have 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).
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III.
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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and
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concludes that it must be dismissed with leave to amend for failure to state a claim upon which
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relief may be granted. To proceed, plaintiff must file an amended complaint.
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Plaintiff names Jones, Lam Dang, Virga, Clough, Ramirez, and McComber as defendants.
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First, he claims that Jones, Lam Dang, and Virga “conspired” to get plaintiff to lose his job in the
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kitchen. He also claims that Lam Dang issued a false rules violation report against plaintiff,
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accusing plaintiff of harassment. As a result of the accusations against plaintiff, defendant
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Clough allegedly informed plaintiff that he would be removed from the “C” facility building and
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placed in administrative segregation. Plaintiff claims that this move cost him his job, his medical
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equipment, and the ability to sleep well. Plaintiff claims that he tried to inform defendant
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Ramirez, the investigator assigned to the rules violation report, about the conspiracy, and that
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Ramirez informed him he would probably be deemed a rapist, and transferred to another prison
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because of the charge. Plaintiff also claims that defendant McComber is somehow responsible
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for plaintiff’s loss of his C-PAP machine and for having a sleep study conducted during the day.
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Aside from his general references to a “conspiracy,” plaintiff does not identify any claims
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for relief and his allegations are not otherwise sufficient to state a claim under section 1983. In
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addition, it appears that the above allegations may not be properly joined together as claims in a
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single action, as the allegations regarding the CPAP machine, for example, appear to involve
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discrete events that did not arise out the same occurrence and involve a common question of law
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or fact as the other allegations in the complaint. See Fed. R. Civ. P. 20(a)(2).
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In order to state a claim under § 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 under
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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d
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930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the
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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal
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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.
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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44
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(9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable
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for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937,
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1948 (2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff
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must plead that each Government-official defendant, through the official’s own individual
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actions, 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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As plaintiff’s intended claims for relief are not clear, the following legal standards may or
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may not be relevant to plaintiff’s intended claims for relief. In any event, plaintiff is admonished
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that any amend complaint must satisfy these requirements for any such claims:
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To proceed on a claim predicated on a conspiracy to deprive plaintiff of federally
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protected rights, plaintiff must allege specific facts showing two or more persons intended to
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accomplish an unlawful objective of causing plaintiff harm and took some concerted action in
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furtherance thereof. Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999);
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Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (plaintiff must allege facts showing an
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agreement among the alleged conspirators to deprive him of his rights); Delew v. Wagner, 143
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F.3d 1219, 1223 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff must allege
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at least facts from which such an agreement to deprive him of rights may be inferred); Burns v.
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County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam) (conclusory allegations of
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conspiracy insufficient to state a valid § 1983 claim); Karim-Panahi v. Los Angeles Police Dep’t,
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839 F.2d 621, 626 (9th Cir. 1988). Plaintiff has not alleged specific facts showing that any
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defendant agreed to accomplish an unlawful objective. Nor has he alleged sufficient facts from
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which any agreement could be inferred.
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To state a claim for violation of the right to procedural due process, plaintiff must allege
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facts showing: “(1) a deprivation of a constitutionally protected liberty or property interest, and
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(2) a denial of adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir.
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2003). Plaintiff does not have a property or liberty interest in a prison job that is protected by the
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Due Process Clause. Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004). Moreover, “the
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Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse
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conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). But state regulations
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may create a liberty interest in avoiding restrictive conditions of confinement if those conditions
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“present a dramatic departure from the basic conditions of [the inmate’s] sentence.” Sandin v.
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Conner, 515 U.S. 472, 485 (1995). Under Sandin, a liberty interest may exist where placement
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in administrative segregation “imposes atypical and significant hardship in the inmate in relation
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to the ordinary incidents of prison life.” Id. at 484.
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In the context of a disciplinary proceeding where a liberty interest is at stake, due process
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requires that “some evidence” support the disciplinary decision. Superintendent v. Hill, 472 U.S.
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445, 455 (1985). The inmate must also receive: “(1) advance written notice of the disciplinary
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charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to
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call witnesses and present documentary evidence in his defense; and (3) a written statement by
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the factfinder of the evidence relied on and the reasons for the disciplinary action.” Id. at 454
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(citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). Maintenance of an inaccurate record,
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without more, is not sufficient to state a claim of constitutional injury under the Due Process
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Clause. See Paul v. Davis, 424 U.S. 693, 711-12 (1976).
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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:
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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)
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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First
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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First
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Amendment includes communications that are “part of the grievance process.” Brodheim v Cry,
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584 F.3d 1262, 1271 n.4 (9th Cir. 2009).
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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a
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plaintiff must establish that he had a serious medical need and that the defendant’s response to
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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see
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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to
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treat the condition could result in further significant injury or the unnecessary and wanton
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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,
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delay or intentional interference with medical treatment or by the way in which medical care is
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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
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To act with deliberate indifference, a prison official must both be aware of facts from
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which the inference could be drawn that a substantial risk of serious harm exists, and he must also
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draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if
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he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing
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to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate
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altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial,
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884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition,
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even if some treatment is prescribed, may constitute deliberate indifference in a particular case.
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Id.
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It is important to differentiate common law negligence claims of malpractice from claims
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predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment.
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In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not
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support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.
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1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391
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F.3d 1051, 1057 (9th Cir. 2004).
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IV.
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Leave to Amend
Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a
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cognizable legal theory against a proper defendant and sufficient facts in support of that
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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in
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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint
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shall clearly set forth the claims and allegations against each defendant. Any amended complaint
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must cure the deficiencies identified above and also adhere to the following requirements:
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Any amended complaint must identify as a defendant only persons who personally
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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a
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constitutional right if he does an act, participates in another’s act or omits to perform an act he is
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legally required to do that causes the alleged deprivation). It must also contain a caption
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including the names of all defendants. Fed. R. Civ. P. 10(a).
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Any amended complaint must be written or typed so that it so that it is complete in itself
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without reference to any earlier filed complaint. L.R. 220. This is because an amended
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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the
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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114
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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter
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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
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1967)).
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Unrelated claims against different defendants must be pursued in multiple lawsuits. “The
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controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, []
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as independent or as alternate claims, as many claims . . . as the party has against an opposing
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party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1
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should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against
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different defendants belong in different suits, not only to prevent the sort of morass [a multiple
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claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing
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fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that
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any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants
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not permitted unless both commonality and same transaction requirements are satisfied). 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, 507 F.3d at 607 (no “buckshot” complaints).
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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil
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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.
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See E.D. Cal. Local Rule 110.
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V.
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Plaintiff’s Motion
In light of this order dismissing plaintiff’s complaint with leave to amend, his “motion
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requesting court to issue order for the full names of defendants,” which appears to be a discovery
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motion is denied without prejudice. If plaintiff is eventually allowed to proceed on a complaint
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that asserts a cognizable claim, he may renew his request for discovery.
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VI.
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Conclusion
Accordingly, the court hereby orders that:
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1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 5, 10) is granted.
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2. Plaintiff’s “motion requesting court to issue order for the full names of defendants”
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(ECF No. 3) is denied.
3. 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 this action being dismissed for failure
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to state a claim. 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: February 9, 2015.
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