Mize v. Beard et al

Filing 14

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/10/2015 DISMISSING plaintiff's amended complaint; and plaintiff has 30 days to file a second amended complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS WAYNE MIZE, SR.,

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No. 2:14-cv-1558 MCE CKD P

Plaintiff,
v.

ORDER

JEFFREY BEARD, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se and seeking relief pursuant to 42

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U.S.C. § 1983. On October 16, 2014, plaintiff’s complaint was dismissed with leave to file an

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amended complaint. Plaintiff has now filed an amended complaint.

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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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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

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upon which the court can grant relief has facial plausibility. 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.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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The allegations in plaintiff’s complaint are not remarkably different from those in his

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original complaint. Again, the court finds the allegations are so vague and conclusory that

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plaintiff fails to state a claim upon which relief can be granted. Although the Federal Rules of

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Civil Procedure 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). Plaintiff must allege with at least some degree of particularity overt acts

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which defendants engaged in that support plaintiff’s claim. Id. Plaintiff’s amended complaint

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must be dismissed. The court will, however, grant plaintiff one final opportunity to amend.

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If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

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the conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights.

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See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff complains about the medical care he

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is receiving at Mule Creek State Prison. Denial or delay of medical care for a prisoner’s serious

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medical needs may constitute a violation of a prisoner’s Eighth Amendment rights. Estelle v.
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Gamble, 429 U.S. 97, 104-05 (1976). A violation of the Eighth Amendment occurs when a

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prison official is deliberately indifferent to a prisoner’s serious medical needs. Id.

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Also, if plaintiff elects to file an amended complaint, plaintiff must explain in specific

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terms how each named defendant is involved in any alleged violation of his rights. For example,

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it is not sufficient to say “defendants denied me medication.” Plaintiff must assert specifically

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who denied him medication, and exactly how denial of the medication in question amounted to

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deliberate indifference to serious medical needs. There can be no liability under 42 U.S.C. §

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1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982). Therefore, plaintiff should avoid naming persons as

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defendants, like Secretary Beard, who did not make decisions specifically about plaintiff’s

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medical treatment.

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Finally, 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 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 second

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amended complaint that complies with the requirements of this order, the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint

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must bear the docket number assigned this case and must be labeled “Second Amended

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Complaint”; failure to file a second amended complaint in accordance with this order will result

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in a recommendation that this action be dismissed.

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Dated: March 10, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mize1558.14(a)

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