Dickman v. Tan et al
Filing
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ORDER signed by Magistrate Judge Dale A. Drozd on 3/30/15 ORDERING that Plaintiffs motion to proceed in forma pauperis (Doc No. 3 ) is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. Clerk of the Court is directed to send plaintiff the courts form for filing a civil rights action.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL DICKMAN,
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No. 2:14-cv-2150 DAD P
Plaintiff,
v.
ORDER
RICHARD M. TAN et al.,
Defendants.
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This
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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 submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in
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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
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the appropriate agency to collect the initial partial filing fee from plaintiff‟s trust account and
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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
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of twenty percent of the preceding month‟s income credited to plaintiff‟s prison trust account.
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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff‟s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §
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1915(b)(2).
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SCREENING REQUIREMENT
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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 an 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 the prisoner has raised claims
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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28
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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.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only „a short and plain
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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 Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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However, in order to survive dismissal for failure to state a claim a complaint must contain more
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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550
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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all
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doubts in the plaintiff‟s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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The Civil Rights Act under which this action was filed provides as follows:
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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.
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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the
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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person „subjects‟ another to the deprivation of a constitutional right, within the
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meaning of § 1983, if he does an affirmative act, participates in another‟s affirmative acts or
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omits to perform an act which he is legally required to do that causes the deprivation of which
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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
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their employees under a theory of respondeat superior and, therefore, when a named defendant
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holds a supervisorial position, the causal link between him and the claimed constitutional
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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);
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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations
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concerning the involvement of official personnel in civil rights violations are not sufficient. See
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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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PLAINTIFF’S COMPLAINT
In the present case, plaintiff has identified Dr. Tan, Nurse Blake, Chief Medical Executive
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Kuerstan, Chief Pfile, Warden Swarthout, Receiver Kelso, and the California Department of
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Corrections and Rehabilitation as the defendants in this action. In his complaint plaintiff alleges
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that he has been diagnosed with Diffuse Idiopathic Skeletal Hyperostosis (“DISH”) also known as
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Forestier‟s Disease. According to plaintiff, DISH is a form of degenerative arthritis. Plaintiff
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complains that the defendants have failed to provide him with adequate medical care for his
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condition. For example, he alleges that defendant Dr. Tan has refused to provide him with proper
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pain management. He also alleges that defendant Nurse Blake wrongfully accused him of
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possibly hoarding his medication by now swallowing it. Plaintiff claims that defendants have
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violated his rights under the Eighth Amendment, the Americans with Disabilities Act, and certain
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state laws and requests declaratory and injunctive relief and damages. (Compl. at 3-23.)
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DISCUSSION
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The allegations in plaintiff‟s complaint are so vague and conclusory that the court is
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unable to determine whether the current action is frivolous or fails to state a claim for relief. The
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complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).
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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to
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the defendants and must allege facts that support the elements of the claim plainly and succinctly.
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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege
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with at least some degree of particularity overt acts which defendants engaged in that support his
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claims. Id. Because plaintiff has failed to comply with the requirements of Federal Rule of Civil
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Procedure 8(a)(2), the complaint must be dismissed. The court will, however, grant plaintiff
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leave to file an amended complaint.
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If plaintiff chooses to file an amended complaint, he must allege facts demonstrating how
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the conditions complained of resulted in a deprivation of his federal constitutional or statutory
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rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in
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specific terms how each named defendant was involved in the deprivation of plaintiff‟s rights.
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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 U.S.
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362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740,
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743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights
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violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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It is clear from the allegations of plaintiff‟s complaint that he is dissatisfied with the
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medical care he has received for his degenerative arthritis condition while incarcerated.
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However, inadequate medical care does not constitute cruel and unusual punishment cognizable
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under § 1983 unless the mistreatment rises to the level of “deliberate indifference to serious
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medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In general, deliberate indifference
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may be shown when prison officials deny, delay, or intentionally interfere with medical
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treatment, or may be shown by the way in which prison officials provide medical care.
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Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).
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In any amended complaint plaintiff elects to file, he must allege facts demonstrating how
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each named defendant‟s actions rose to the level of “deliberate indifference.” Plaintiff is advised
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that mere differences of opinion between a prisoner and prison medical staff as to the proper
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course of treatment for a medical condition do not give rise to a § 1983 claim. See Toguchi v.
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Soon Hwang Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332
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(9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d
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1337, 1344 (9th Cir. 1981).
In addition, before it can be said that a prisoner‟s civil rights have been abridged, “the
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indifference to his medical needs must be substantial. Mere „indifference,‟ „negligence,‟ or
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„medical malpractice‟ will not support this cause of action.” Broughton v. Cutter Lab., 622 F.2d
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458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also Wood v. Housewright, 900
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F.2d 1332, 1334 (9th Cir. 1990) (“In determining deliberate indifference, we scrutinize the
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particular facts and look for substantial indifference in the individual case, indicating more than
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mere negligence or isolated occurrences of neglect.”).
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Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.
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at 104-05. To establish a claim of deliberate indifference arising from delay in providing medical
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care, however, a plaintiff must allege facts showing that the delay in treatment was harmful. See
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Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); Hunt v. Dental Dep‟t, 865 F.2d 198, 200
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(9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm‟rs, 766 F.2d 404, 407 (9th Cir.
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1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would
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provide additional support for the inmate‟s claim that the defendant was deliberately indifferent to
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his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
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The court observes that plaintiff has also included a claim under the Americans with
Disabilities Act (“ADA”). Title II of the ADA provides that:
no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or
be subject to discrimination by such entity.
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To establish a violation of the ADA, a plaintiff must allege facts showing that: (1) he or she is a
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qualified individual with a disability; (2) he or she was excluded from participation in or
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otherwise discriminated against with regard to a public entity‟s services, programs, or activities;
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and (3) such exclusion or discrimination was by reason of his or her disability. See Simmons v.
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Navajo County, 609 F.3d 1011, 1021 (9th Cir. 2010); Lovell v. Chandler, 303 F.3d 1039, 1052
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(9th Cir. 2002).
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Plaintiff has not alleged any facts suggestive of a cognizable ADA claim in his complaint.
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Specifically, plaintiff has not alleged that any defendant discriminated against him or denied him
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benefits because of his alleged disability. Rather, plaintiff alleges that defendants failed to
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provide him proper medical treatment when they refused to refer him to a physical therapist and
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an orthopedist and failed to provide him with the appropriate diet for his condition and so on.
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These allegations are part of an inadequate medical care claim raised under the Eighth
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Amendment, not the ADA. See Simmons, 609 F.3d at 1022 (“The ADA prohibits discrimination
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because of disability, not inadequate treatment for disability”). In any amended complaint
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plaintiff elects to file, he should either omit his ADA claim or must allege facts demonstrating
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how a defendant entity discriminated against him based on a disability.
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Plaintiff is also informed that the court cannot refer to a prior pleading in order to make
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plaintiff‟s amended complaint complete. Local Rule 220 requires that an amended complaint be
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complete in itself without reference to any prior pleading. This is because, as a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th
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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any
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function in the case. Therefore, in any amended complaint plaintiff elects to file, 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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CONCLUSION
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff‟s motion to proceed in forma pauperis (Doc No. 3) is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee
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shall be collected and paid in accordance with this court‟s order to the Director of the California
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Department of Corrections and Rehabilitation filed concurrently herewith.
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3. Plaintiff‟s complaint (Doc. No. 1) is dismissed.
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4. 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 to 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 without prejudice; and
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5. The Clerk of the Court is directed to send plaintiff the court‟s form for filing a civil
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rights action.
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Dated: March 30, 2015
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DAD:9
dick2150.14a
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