Sims v. C.D.C.R. et al

Filing 16

ORDER signed by Magistrate Judge Craig M. Kellison on 02/10/17 ordering defendant California Department of Corrections and Rehabilitation is dismissed. Plaintiff's first amended complaint is dismissed with leave to amend. Plaintiff shall file a second amended complaint within 30 days of the date of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELVIN SIMS,

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No. 2:15-CV-0713-CMK-P

Plaintiff,
vs.

ORDER

CDCR, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c) and no other party has been served or appeared in the action. Pending before the court

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is plaintiff’s first amended complaint (Doc. 13).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or 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 it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff names the following as defendants: (1) California Department of

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Corrections and Rehabilitation (2) John Doe; (3) Smith; (4) Eric Arnold; (5) Dr. Win; (6) Dr.

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Pfile; (7) J. Lewis; (8) H.K. Johnson; and (9) McComas. Plaintiff alleges that, from October

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2013 through March 2015, defendant California Department of Corrections and Rehabilitation

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“demonstrated deliberate indifference via negligent implementation of policies, regulations, etc.”

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Plaintiff claims that the result was denial of medical care to inmates at Ironwood State Prison and

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Solano State Prison.

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Next, plaintiff asserts that defendant John Doe, the warden at Ironwood State

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Prison, violated his rights by “negligently instituting” polices which resulted in the denial of

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health care. Plaintiff similarly alleges with respect to defendants Smith, a correctional counselor

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at Ironwood State Prison, and Eric Arnold, the warden at Solano State Prison.

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Next, plaintiff claims that defendants Drs. Win and Pfile violated his rights by

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“following Solano Prison’s protocol” which resulted in the denial of plaintiff’s medical appeal.

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Plaintiff adds that Dr. Pfile is Dr. Win’s supervisor.

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Next, plaintiff claims that defendant J. Lewis violated his rights by “following
Solano’s protocol” which resulted in the “erroneous denial” of his medical appeals.

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Next, plaintiff claims that defendant H.K. Johnson refused to provide “adequate
assistance” in processing plaintiff’s emergency request for a prison transfer.

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Finally, plaintiff claims that defendant McComas misrepresented his statements in

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a report prepared for plaintiff’s medical appeal. Specifically, plaintiff alleges that defendant

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McComas omitted plaintiff’s statement: “My medical necessity for an emergency transfer is

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perpetually being ignored and needs to be addressed.”

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II. DISCUSSION

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The court finds that plaintiff’s amended complaint fails to state a claim as against
any named defendant.

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Defendant California Department of Corrections and Rehabilitation is immune

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from suit. The Eleventh Amendment prohibits federal courts from hearing suits brought against

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a state both by its own citizens, as well as by citizens of other states. See Brooks v. Sulphur

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Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition extends to

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suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t of Corr.,

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66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989). A state’s agency responsible for incarceration and correction of prisoners is a state

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agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782

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(1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th cir. 1993) (en banc).

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As to all remaining defendants, plaintiff’s allegations are conclusory legal

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statements unsupported by any specific factual allegations. In particular, plaintiff’s amended

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complaint does nothing to inform the court what allegedly happened, when, and by whom.

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III. CONCLUSION

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Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Defendant California Department of Corrections and Rehabilitation is

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Plaintiff’s first amended complaint is dismissed with leave to amend; and

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Plaintiff shall file a second amended complaint within 30 days of the date

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dismissed;

of service of this order.

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DATED: February 10, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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