McNair v. Lively, et al.
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 10/30/2014 DISMISSING plaintiff's complaint with leave to file a first amended complaint within 30 days. (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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LA VANCE McNAIR,
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Plaintiff,
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vs.
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No. 2:14-CV-1043-CMK-P
L. LIVELY, et al.,
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ORDER
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or 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 it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied
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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon
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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must
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allege with at least some degree of particularity overt acts by specific defendants which support
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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
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impossible for the court to conduct the screening required by law when the allegations are vague
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and conclusory.
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Plaintiff names the following as defendants: Lively, McCoy, Zahniser,
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Agbemafle, and Windsor. Plaintiff states that, on April 8, 2013, the wall fire extinguisher near
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his cell “erupted” and that he cut his hand when he put his hand on it attempting to protect his
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belongings. According to plaintiff, defendants Lively, Zahniser, and McCoy were correctional
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officers on duty at the time. Plaintiff states that, due to the “large amount of water that come
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from the extinguisher it caused several inmates to mop the water up and took over two hours.”
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Plaintiff adds that this caused defendants to “catch an attitude with the plaintiff by denying him
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medical attention.” Plaintiff also claims that defendant Agbemafle, a prison nurse, also denied
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him medical attention “by saying in order to be treating my hand I would have to have my
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building officer to call medical.”
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Next, plaintiff claims that he informed defendants Lively, Zahniser, and McCoy of
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“the circumstances on getting medical treatment.” According to plaintiff, they refused to call
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medical. Plaintiff states that he then filed a formal request for an appointment with the medical
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clinic. Plaintiff adds that he was eventually seen by defendant Windsor, a prison doctor, on May
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15, 2013, and that he was prescribed medication to treat infection.
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The treatment a prisoner receives in prison and the conditions under which the
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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel
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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,
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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102
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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.
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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with
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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,
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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only
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when two requirements are met: (1) objectively, the official’s act or omission must be so serious
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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)
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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of
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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison
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official must have a “sufficiently culpable mind.” See id.
Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious
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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at
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105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental
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health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is
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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant
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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d
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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).
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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition
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is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily
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activities; and (3) whether the condition is chronic and accompanied by substantial pain. See
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Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).
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In this case, plaintiff has not alleged sufficient facts to show that he presented with
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a serious injury. Plaintiff describes his injury as follows: “a nice cut to my left palm.” He does
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not, however, allege an injury which is accompanied by substantial pain or which impacts his
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daily activities. And while plaintiff alleges that he developed an infection, he has not alleged that
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the infection was significant. In fact, it appears that it was treated with nothing more serious than
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medication.
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Because it is possible that the deficiencies identified in this order may be cured by
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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire
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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is
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informed that, as a general rule, an amended complaint supersedes the original complaint. See
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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to
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amend, all claims alleged in the original complaint which are not alleged in the amended
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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if
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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make
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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be
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complete in itself without reference to any prior pleading. See id.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
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each named defendant is involved, and must set forth some affirmative link or connection
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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Finally, plaintiff is warned that failure to file an amended complaint within the
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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at
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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply
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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).
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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed with leave to amend; and
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Plaintiff shall file a first amended complaint within 30 days of the date of
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service of this order.
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DATED: October 30, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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