Burgos v. Fox et al

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/17/14 ORDERING that Plaintiffs request for leave to proceed in forma pauperis 9 & 11 is granted. Plaintiffs complaint is dismissed. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint; Plaintiffs motion for a temporary restraining order 3 is denied.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MANUEL BURGOS,

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Plaintiff,

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No. 2:14-cv-1952 CKD P

v.

ORDER

K. FOX, et al.,

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Defendants.

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Plaintiff is a recently released state prisoner seeking relief pursuant to 42 U.S.C. § 1983.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has consented to all matters in this action being before a United States Magistrate Judge.

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See 28 U.S.C. § 636(c).

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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 has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

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Accordingly, the request to proceed in forma pauperis will be granted.

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II. Screening
The court is required to screen complaints brought by prisoners1 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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Plaintiff was still incarcerated when this action was filed.
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The court has screened plaintiff’s complaint and finds that the allegations fail to state a

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claim upon which relief can be granted. Plaintiff’s complaint must be dismissed. The court will,

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however, grant leave to file an amended complaint.

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First, plaintiff’s complaint is too long and, at times, difficult to read in violation of Rule

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8(2) of the Federal Rules of Civil Procedure which requires that pleadings contain only a “short

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and plain statement of the claim showing that the pleader is entitled to relief.” Although the

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Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). With respect to his amended complaint, plaintiff

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should take care to write legibly, not repeat statements, not cite statements of law which have no

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applicability to any arguably valid claim, and to omit facts which are not relevant to potentially

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viable claims.

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In his amended complaint, must demonstrate how the conditions complained of have

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resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227

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(9th Cir. 1980). To the extent plaintiff complains about medical care, plaintiff is informed that

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denial or delay of medical care for a prisoner’s serious medical needs may constitute a violation

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of the prisoner’s Eighth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). An

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individual is liable for such a violation only when the individual is deliberately indifferent to a

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prisoner’s serious medical needs. Id. In his amended complaint, plaintiff should focus on

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providing facts showing what his medical condition was, why it was serious, how it was that

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defendants knew of his condition, how it was that defendants were at least deliberately indifferent

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to his condition, and what injuries came about as a result of defendants’ actions.

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With respect to conditions of confinement generally, the Eighth Amendment’s prohibition

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of cruel and unusual punishment imposes on prison officials, among other things, a duty to “take

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reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825,

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832 (1991) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). An inmate’s Eighth

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Amendment rights can only be violated by a prison official if that official exposes an inmate to a

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“substantial risk of serious harm,” while displaying “deliberate indifference” to that risk. Id. at
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834. An official is deliberately indifferent if he or she knows of and disregards an excessive risk

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to inmate health or safety; the official must both be aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at

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837. In his amended complaint, plaintiff should focus on providing facts showing why he

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believes he was subjected to a substantial risk of serious harm by particular conditions, that

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defendants were aware the conditions were dangerous to plaintiff, defendants were at least

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deliberately indifferent to the substantial risk of serious harm and what injuries came about as a

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result of defendants’ actions.

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In his amended complaint, plaintiff must allege in specific terms how each named

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defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (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. Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982). In his complaint, plaintiff identifies several persons as defendants

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simply because they are supervisory staff or upper management with the California Department

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of Corrections and Rehabilitation (e.g. Clark Kelso, Jeffrey Beard). These defendants should be

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omitted from plaintiff’s amended complaint unless they had some direct involvement in actions

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which resulted in a violation of plaintiff’s federal rights.

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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 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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III. Temporary Restraining Order

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The court notes plaintiff has filed a motion seeking a temporary restraining order

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regarding conditions of confinement. Since plaintiff has been released from prison (see EFC No.

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12), this motion will be denied as moot.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 9 & 11) is granted.

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2. Plaintiff’s complaint is dismissed.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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

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assigned this case and must be labeled “Amended Complaint”; failure to file an 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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4. Plaintiff’s motion for a temporary restraining order (ECF No. 3) is denied.
Dated: October 17, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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