Singletary v. Duffey

Filing 16

ORDER signed by Magistrate Judge Kendall J. Newman on 8/11/15 Plaintiffs August 3, 2015 motion for an extension of time (ECF No. 14 ) is DENIED as moot; Plaintiffs amended complaint is dismissed; and Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GONDEE CHARLES SINGLETARY,

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Plaintiff,

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No. 2:15-cv-1231 KJN P

v.

ORDER

BRIAN DUFFY, Warden,

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Defendants.

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I. Introduction
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.
On August 3, 2015, plaintiff filed a motion for extension of time to file an amended

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complaint. However, on August 6, 2015, plaintiff filed an amended complaint. Pursuant to the

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July 17, 2015 order, plaintiff’s amended complaint was to be filed on or before August 17, 2015.

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Therefore, plaintiff’s amended complaint was timely filed, and no extension of time was required.

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Thus, plaintiff’s request for extension of time is denied as moot. Plaintiff’s amended complaint is

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now before the court.

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II. Screening
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, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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In his amended complaint, plaintiff alleges that because he is an inmate with HIV, he is

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being denied placement on a kidney transplant list. Plaintiff contends that the California

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Department of Corrections (“CDCR”) denies medical treatment to a certain class of individuals

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by denying inmates with the pre-existing medical condition of HIV from receiving kidney

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transplants. In addition to monetary damages, plaintiff asks that the CDCR and the California

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Health Care Facility at Stockton (“CCHCS”) be ordered to place plaintiff on the kidney transplant
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list, and to change their policy to include HIV patients. (ECF No. 15 at 3, 5.)

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Plaintiff names as defendants the warden of CCHCS, Medical CEO Jackie Clark, and J.

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Clark Kelso, Federal Receiver.

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III. Linkage Requirement

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The Civil Rights Act under which this action was filed provides:

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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 plainly requires that there be an actual connection or link between

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the 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). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another’s affirmative acts, or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978).

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Here, plaintiff fails to link the individuals named as defendants to any alleged

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constitutional violation. Plaintiff will be given leave to cure this deficiency. If plaintiff elects to

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amend his complaint, he must allege what each defendant did that resulted in a violation of his

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rights.

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IV. Respondeat Superior

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To the extent plaintiff seeks to bring suit against defendants based on their roles as

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supervisors, he may not do so. Supervisory personnel may not be held liable under section 1983

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for the actions of subordinate employees based on respondeat superior or vicarious liability.

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Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t. of

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Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013). “A supervisor may be liable only if

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(1) he or she is personally involved in the constitutional deprivation, or (2) there is a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional violation.”
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Crowley, 734 F.3d at 977 (internal citation and quotation marks omitted); accord Lemire, 726

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F.3d at 1074-75. “Under the latter theory, supervisory liability exists even without overt personal

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participation in the offensive act if supervisory officials implement a policy so deficient that the

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policy itself is a repudiation of constitutional rights and is the moving force of a constitutional

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violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989))

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(internal quotation marks omitted).

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Plaintiff has not alleged that defendants were personally involved in the constitutional

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deprivation or that they instituted the allegedly deficient policy. Plaintiff will be given leave to

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cure this deficiency.

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V. Improper Defendant
Finally, J. Clark Kelso, Federal Receiver, is not a proper defendant. Mr. Kelso, in his role

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as a federal receiver, is entitled to quasi-judicial immunity. Quasi-judicial immunity is derived

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from the long-recognized common law doctrine of judicial immunity. In re Castillo, 297 F.3d

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940, 947 (9th Cir. 2002). Partly to promote the use of the appellate process, acts performed by

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judges that relate to the judicial process are immune from attack. Id. Quasi-judicial immunity is

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immunity that extends to nonjudicial officers for “claims relating to the exercise of judicial

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functions.” Id. (quoting Burns v. Reed, 500 U.S. 478, 499 (1991)). In other words, quasi-judicial

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immunity protects nonjudicial officers because their decisions are “functionally comparable” to

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those of a judge involving the exercise of discretion. Antoine v. Byers & Anderson, 508 U.S.

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429, 436 (1993).

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Kelso was appointed to be the receiver for CDCR’s health care system. See Plata v.

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Schwarzenegger, et al., C01-1351-TEH (N.D. Cal. Jan. 23, 2008) (class action constitutional

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challenge to the adequacy of medical care provided throughout the California state prison

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system). Upon Kelso’s appointment as receiver in 2008, the district court stated that “[t]he

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Receivership must continue to maintain its independence as an arm of the federal courts

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established to take over state operations. . . .” Id. at 5. The district court ordered that “[a]ll

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powers, privileges, and responsibilities of the Receiver, as set forth in the Court’s February 14,

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2006 Order Appointing Receiver, shall continue in full effect, except as modified by subsequent
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orders. . . .” Id. In the February 14, 2006 Order Appointing Receiver, the district court ordered

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that

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[t]he Receiver and his staff shall have the status of officers and
agents of this Court, and as such shall be vested with the same
immunities as vest with this Court.

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Id. at 6. Those judicial immunities extend to immunity from suit. See Pierson v. Ray, 386 U.S.

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547, 553-54 (1967) (“Few doctrines were more solidly established at common law than the

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immunity of judges from liability for damages for acts committed within their judicial jurisdiction

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. . . .”); see also Coleman v. Schwarzenegger, 2007 WL 4276554 (E.D. Cal. Nov. 29, 2007)

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(holding that a receiver who was “imbued with the power and authority to act in the name of the

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Court as the Court’s officer” had judicial immunity). “[J]udicial immunity is not overcome by

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allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without

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engaging in discovery and eventual trial.” Mireles v. Waco, 502 U.S. 9, 11 (1991). There are

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two primary exceptions to the absolute judicial immunity: first, where the judge’s action is “not

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taken in the judge’s judicial capacity”; and second, where the judge’s action, “though judicial in

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nature, is taken in the complete absence of all jurisdiction.” Id. at 11-12.

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Even if plaintiff were granted leave to amend his complaint so as to allege that Kelso

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was aware of plaintiff’s medical needs and failed to act upon that knowledge, it appears those

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allegations would similarly entitle Kelso to absolute quasi-judicial immunity because plaintiff

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would again be alleging that Kelso failed to act within his official capacity as receiver of the

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health care system.

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Thus, because Kelso is entitled to quasi-judicial immunity, plaintiff should not name J.

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Clark Kelso as a defendant in any second amended complaint unless plaintiff can plead specific

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facts demonstrating that Kelso is not entitled to quasi-judicial immunity.

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VI. Clarification of Prior Order

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In his amended complaint, plaintiff clarified that some of the allegations attributed to

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plaintiff in the court’s initial screening order were factual allegations of other inmates included in

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the letter to Judge Henderson, but were not attributable to plaintiff. (ECF No. 15 at 6-7.) The

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court appreciates plaintiff’s clarification for the record. As plaintiff was previously informed, the
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prior pleadings are superseded by any amended complaint. Thus, plaintiff need not repeat his

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clarification in any second amended complaint.

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VII. Conclusion

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Therefore, while it appears plaintiff may be able to state a cognizable Eighth Amendment

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claim, he must allege facts linking the individuals named as defendants. Plaintiff is granted an

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opportunity to cure the identified deficiencies by filing a second amended complaint. Although

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the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the

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elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649

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(9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which

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defendants engaged in that support plaintiff’s claim. Id.

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If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

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the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or

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statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended

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complaint must allege in specific terms how each named defendant is involved. There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 362; May v. Enomoto, 633

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F.2d 164, 167 (9th Cir. 1980); Duffy, 588 F.2d at 743. Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of

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Regents, 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 second 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 requirement is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in a second amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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

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1. Plaintiff’s August 3, 2015 motion for an extension of time (ECF No. 14) is denied as

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moot;

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2. Plaintiff’s amended complaint is dismissed; and

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

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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 second amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff

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must file an original and two copies of the second amended complaint.

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Failure to file a second amended complaint in accordance with this order will result in a

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recommendation that this action be dismissed.

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Dated: August 11, 2015

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