Gibbs v. Peterson, et al

Filing 46

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/17/17 ordering that plaintiff is granted 30 days within which to file a second amended complaint. If plaintiff elects not to file a second amended complaint within 30 days the court will direct defendant Johnson to file a response to plaintiff's amended complaint and recommend that all other defendants be dismissed. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH B. GIBBS,

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No. 2:15-cv-0061 KJM CKD P

Plaintiff,
v.

ORDER

MACCOMBER, et al.,
Defendants.

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Pursuant to the district court’s September 9, 2016 order, the court rescreens plaintiff’s
April 17, 2015 amended complaint (ECF No. 22) under 28 U.S.C. § 1915A as follows.
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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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, 556 U.S. 662, 678 (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, 556 U.S.

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at 678. 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).
As indicated in the court’s August 31, 2015 order and findings and recommendations,

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plaintiff has alleged sufficient facts in his amended complaint to proceed on claims arising under

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the Eighth Amendment against defendants Johnson and Prasinos for failure to protect plaintiff

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from violence and against defendant Prasinos for failure to provide plaintiff with adequate

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medical care.
As to the other defendants and claims identified in plaintiff’s amended complaint, plaintiff

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fails to state a claim upon which relief can be granted. First, plaintiff asserts all defendants

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retaliated against plaintiff for plaintiff’s use of the inmate grievance process in violation of the

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First Amendment. However, plaintiff fails to allege facts adequately linking any injury suffered

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by plaintiff to any grievance filed by him. While plaintiff alleges suffered negative events after

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he filed grievances, he fails to point to facts suggesting the filing of the grievance(s) caused a

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defendant to injure plaintiff.

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Plaintiff also alleges that all defendants violated his Eighth Amendment rights by either

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being deliberately indifferent to his medical needs or by subjecting plaintiff to dangerous

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conditions of confinement. Plaintiff fails to point to any facts indicating that any defendant, other

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than defendant Prasinos, denied plaintiff medical treatment, caused plaintiff injury by not treating

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plaintiff, or caused plaintiff injury by providing him with the wrong treatment. As for subjecting

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plaintiff to dangerous conditions, or failing to protect plaintiff from such conditions, plaintiff does

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not allege sufficient specific facts indicating any defendant other than defendant Johnson and

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Prasinos took any action, or knowingly failed to act, resulting in injury to plaintiff.

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Finally, plaintiff alleges defendants violated his rights arising under the Fifth and

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Fourteenth Amendments. The court assumes plaintiff is referencing the “due process” clauses in

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each of those amendments. In any case, plaintiff fails to elaborate how he was denied any process

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due (e.g. a hearing) under the Constitution.

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At this point, plaintiff has two options: 1) he may either proceed on the claims against

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defendants Johnson and Prasinos described above; or 2) he may attempt to cure the deficiencies

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with respect to other claims in an amended complaint. The court will grant plaintiff 30 days

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within which to file a second amended complaint. If plaintiff does not file a second amended

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complaint within 30 days, the court will direct defendant Johnson to file his response to plaintiff’s

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amended complaint (Prasinos has already responded) and will recommend that all other

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defendants be dismissed.

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Plaintiff is reminded that if he elects to file a second amended complaint, the court cannot

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refer to a prior pleading in order to make plaintiff’s second amended complaint complete. Local

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Rule 220 requires that an amended complaint be complete in itself without reference to any prior

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pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an

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amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged.

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Accordingly, IT IS HEREBY ORDERED that plaintiff is granted 30 days within which to

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file a second amended complaint. If plaintiff elects not to file a second amended complaint

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within 30 days, the court will direct defendant Johnson to file a response to plaintiff’s amended

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complaint and recommend that all other defendants be dismissed.

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Dated: January 17, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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gibb0061.rs

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