Green v. CDCR et al
Filing
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ORDER signed by Magistrate Judge Allison Claire on 12/19/14 ordering plaintiff's complaint is dismissed with leave to amend. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WARREN C. GREEN,
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Plaintiff,
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No. 2:14-CV-2854 TLN AC
v.
ORDER
T. BZOSKIE, M.D. et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to
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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court
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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s complaint is now before the
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court.
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I. SCREENING STANDARD
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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A complaint must contain more than a “formulaic recitation of the elements of a cause of
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action;” it must contain factual allegations sufficient to “raise a right to relief above the
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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is insufficient
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for the pleading to contain a statement of facts that “merely creates a suspicion” that the pleader
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might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, Federal
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Practice and Procedure § 1216, pp. 235–35 (3d ed.2004)). Rather, the complaint “must contain
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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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In reviewing a complaint under this standard, the court “must accept as true all of the
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factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
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Twombly, 550 U.S. at 555-56), construe those allegations in the light most favorable to the
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plaintiff, Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th
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Cir. 2010) (citing Twombly, 550 U.S. 544), cert. denied, 131 S. Ct. 3055 (2011), and resolve all
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doubts in the plaintiff's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010) (citing Hospital
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Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)).
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II. THE COMPLAINT
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Plaintiff alleges that he developed a serious medical problem in his scrotum. ECF No. 1
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at 5. Plaintiff suffered serious pain, and noted that a “bump/lump” had developed there. Id.
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Plaintiff believes his condition is called “epididymitis.” Id., at 7. The CDCR doctor at CHCF –
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who was not a “scrotum specialist” – misdiagnosed the medical problem, stating that there was no
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lump. Id., at 5. The doctors at CHCD then allowed plaintiff to suffer with the pain of this
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condition for months. Id., at 6. The pain has become chronic. Id.
On October 7, 2014, plaintiff was sent to the hospital, but not allowed to see the urologist.
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Id., at 7. On October 9, 2014, plaintiff did see a urologist at CHCF, who ordered antibiotics for
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plaintiff and told him to return in three weeks. Id. (plaintiff comments that this created “more
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time to suffer”).
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Plaintiff alleges that his condition constitutes a medical emergency “which may cause
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tissue death in the scrotum or ED,” that he should have been seen right away by a specialist
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“urologist/surgeon,” and that the “lump/bump” should have been removed. Id. Plaintiff ends his
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factual recitation by stating: “Procrastination, maliciousness in medical treatment.” Id.
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III. ANALYSIS
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A. Deliberate Indifferent to Serious Medical Needs
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The State has an obligation “to provide medical care for those whom it is punishing by
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incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Accordingly, “deliberate
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indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton
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infliction of pain’ proscribed by the Eighth Amendment.” Id., 429 U.S. 104. Such “deliberate
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indifference” to a prisoner's serious medical needs “states a cause of action under § 1983.” Id.,
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429 U.S. at 105.
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In order to state a § 1983 claim for violation of the Eighth Amendment based on
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inadequate medical care, plaintiff must allege “acts or omissions sufficiently harmful to evidence
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deliberate indifference to serious medical needs.” Id., 429 U.S. at 106. To prevail, plaintiff must
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show both that his medical needs were objectively “serious,” Hudson v. McMillian, 503 U.S. 1, 9
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(1992), and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501
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U.S. 294, 299 (1991). The requisite state of mind for an Eighth Amendment claim relating to
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medical treatment is “deliberate indifference.” Hudson, 503 U.S. at 5.
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A serious medical need exists if failure to treat the injury or condition “could result in
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further significant injury or cause the unnecessary and wanton infliction of pain.” Colwell v.
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Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal quotation marks omitted). Indications
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that a plaintiff has a serious medical need include: “[t]he existence of an injury that a reasonable
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doctor or patient would find important and worthy of comment or treatment; the presence of a
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medical condition that significantly affects an individual's daily activities; or the existence of
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chronic and substantial pain.” Colwell, 763 F.3d at 1066 (internal quotation marks omitted).
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In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court established a very
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demanding standard for “deliberate indifference.” Negligence is insufficient. Farmer, 511 U.S.
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at 835. Even civil recklessness (failure to act in the face of an unjustifiably high risk of harm
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which is so obvious that it should be known) is insufficient to establish an Eighth Amendment
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violation. Id., at 836-37. It not enough that a reasonable person would have known of the risk or
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that a defendant should have known of the risk. Id. at 842. Rather, deliberate indifference is
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established only where the defendant subjectively “knows of and disregards an excessive risk to
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inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal
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quotation marks omitted) (emphasis added).
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A physician need not fail to treat an inmate altogether in order to violate that inmate's
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Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989).
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Failure to competently treat a serious medical condition, even if some treatment is prescribed,
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may be evidence that prison officials are deliberately indifferent to inmates’ serious medical
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needs. Id. However, mere differences of opinion concerning the appropriate treatment cannot be
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the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.),
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cert. denied, 519 U.S. 1029 (1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)
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(difference of medical opinion as to treatment of serious medical needs does not amount to
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deliberate indifference).
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To make out a claim for deliberate indifference that turns on a difference of medical
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opinion, the plaintiff must allege “that the course of treatment the doctors chose was medically
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unacceptable under the circumstances and that the defendants chose this course in conscious
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disregard of an excessive risk to plaintiff's health.” Snow v. McDaniel, 681 F.3d 978, 988 (9th
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Cir. 2012) (internal quotation marks omitted)1.
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Overruled on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc),
petition for certiorari filed, 83 U.S.L.W. 3239 (U.S. Sep. 19, 2014) (No. 14-328).
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A finding that an inmate was seriously harmed by the defendant's action or inaction tends
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to provide additional support for a claim of deliberate indifference; however, it does not end the
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inquiry. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992), overruled on other grounds,
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WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc). In summary,
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“the more serious the medical needs of the prisoner, and the more unwarranted the defendant's
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actions in light of those needs, the more likely it is that a plaintiff has established deliberate
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indifference on the part of the defendant.” McGuckin, 974 F.2d at 1061.
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B. Application to Allegations of this Complaint
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Plaintiff sufficiently alleges that he suffers from a serious medical condition. Among
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other things, he alleges that he was eventually sent to the hospital for the condition, and that he
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suffers serious, chronic pain from it. However, plaintiff’s remaining allegations are that he was
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“misdiagnosed,” that his doctors did not give him the treatment he believes he should have
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received, and that he was seen, initially, only by a general doctor rather than the specialist
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plaintiff believes should have been treating him. These allegations do not state an Eighth
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Amendment claim for deliberate indifference to serious medical needs.
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The allegation of a “misdiagnosis” is an allegation solely of medical negligence, and is not
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cognizable as a § 1983 claim. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012) (“Dr.
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Schuster's alleged failure was negligent misdiagnosis, or a disagreement with Dr. Rotman.
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Therefore, the allegations are insufficient to establish deliberate indifference by Dr. Schuster.”).
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Plaintiff’s assertions that he should have had the “lump/bump” removed, rather than have it
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treated with pain medication and antibiotics, and that he should have been seen by a specialist
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rather than a general doctor, amount to no more a difference of opinion between plaintiff and his
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treating doctors. Indeed, the medical choices alleged here, like those in Estelle v. Gamble, were
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“classic example[s]” of matters “for medical judgment.” 429 U.S. at 107. The allegation that
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defendants chose one type of treatment over another, or deployed one type of doctor over another,
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are not allegations of “cruel and unusual punishment.” They are, at most, allegations of medical
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negligence, not cognizable in a § 1983 claim. Id.
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Plaintiff does include in his complaint the following statement: “Procrastination,
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maliciousness in medical treatment.” ECF No. 1 at 7. The factual allegations of the complaint,
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however, establish nothing more than negligence on the part of plaintiff’s treating and supervising
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doctors. Adding the word “maliciousness” to the end of the complaint does not change this. If
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plaintiff wants to allege that the doctors were deliberately indifferent to his serious medical needs,
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he must allege facts from which this court can reasonably draw that inference. It is not enough to
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simply state the conclusion – unconnected to any specific factual allegations – that the doctors
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acted with “maliciousness.”
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The complaint will be dismissed but plaintiff will be granted leave to amend.
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C. Amendment
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If plaintiff chooses to amend the complaint, he must demonstrate how the conditions
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complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v.
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Cassidy, 625 F.2d 227 (9th Cir. 1980), abrogated on other (attorney’s fees) grounds, Kay v.
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Ehrler, 499 U.S. 432 (1991). Also, the complaint 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. See Ivey v. Board of Regents,
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673 F.2d 266, 268 (9th Cir.1982).
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In addition, 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 Lacey v. Maricopa
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County, 693 F.3d 896, 927 (9th Cir. 2012) (en banc) (“the general rule is that an amended
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complaint [supersedes] the original complaint and renders it without legal effect . . ..”) Once
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plaintiff files an amended complaint, the original pleading no longer serves any function in the
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case. Therefore, in an amended complaint, as in an original complaint, each claim and the
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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 complaint is DISMISSED with leave to amend; and
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2. Plaintiff is granted thirty (30) days from the date of service of this order to file an
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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules
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of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket
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number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an
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original and two copies of the amended complaint; failure to file an amended complaint in
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accordance with this order will result in a recommendation that this action be dismissed.
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DATED: December 19, 2014
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