Herb L. Gadbury v. State of California, et al.

Filing 13

ORDER signed by Magistrate Judge Deborah Barnes on 03/31/17 ordering plaintiff's first amended complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a second 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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HERB L. GADBURY,

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Plaintiff,

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No. 2:15-cv-2015 DB P

v.

ORDER

STATE OF CALIFORNIA, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a magistrate judge.
Plaintiff’s original complaint was dismissed with leave to amend for failure to state a

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claim. Plaintiff has now submitted a letter, which the undersigned construes as a first amended

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complaint. This pleading will be screened herein.

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I.

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Screening Requirement
The court is required to screen complaints brought by individuals proceeding in forma

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pauperis seeking relief against a governmental entity or an officer or employee of a governmental

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entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the

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complaint contains claims that are legally “frivolous or malicious,” that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge

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unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). While factual allegations are accepted as true,

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legal conclusions are not. Iqbal, 556 U.S. at 678.

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Under section 1983, plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This

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requires the presentation of factual allegations sufficient to state a plausible claim for relief.

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Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short of

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meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

Discussion

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On July 5, 2016, plaintiff’s original complaint was dismissed for failure to state a claim

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against any of the named defendants, California Health Care Facility (“CHCF”) Warden Brian

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Duffy. Appeals Examiner K.J. Allen, and the State of California. His claim against Warden Duffy

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and Allen were based solely on their respective roles in denying plaintiff’s grievance at the

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second and third levels of review, which were insufficient standing alone to state a claim.

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). His claim against the State of California

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failed entirely under the Eleventh Amendment. Aholelei v. Dep’t of Public Safety, 488 F.3d 1144,
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1147 (9th Cir. 2007); Brown v. California Dep’t of Corrections, 544 F.3d 747, 752 (9th Cir.

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2009).

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Plaintiff’s factual allegations in the first amended complaint are minimal. He states only

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that (a) he eats a Hindu vegan diet, which prohibits meat and dairy, (b) he has certain health

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problems; and (c) CHCF gives him food that he cannot eat.

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These minimal allegations convince the undersigned that this pleading must also be

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dismissed for failure to state a claim. The document fails as a stand-alone pleading because it

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responds only to certain deficiencies identified in the July 5, 2016, screening order without re-

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asserting critical facts or identifying the involvement of any individuals; it identifies only the

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State of California as a defendant, and it attaches numerous exhibits without a sufficient factual

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underpinning in the pleading.

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It is evident that plaintiff intends for his filing to supplement his original complaint. This

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is improper. Local Rule 220 requires that an amended complaint be complete in itself without

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reference to any prior pleading. 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 an amended complaint is

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filed, the original complaint no longer serves any function in the case.

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The amended pleading will therefore be dismissed. If plaintiff opts to amend, he must

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address the deficiencies noted in the July 5, 2016, Screening Order and in this Screening Order.

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Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim

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that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).

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The amended complaint should be clearly and boldly titled “Second Amended

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Complaint,” refer to the appropriate case number, and be an original signed under penalty of

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perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). Although accepted as

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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative

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level . . . .” Twombly, 550 U.S. at 555 (citations omitted). The amended pleading must also be a

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stand-alone document. Lous, 375 F. 2d at 57. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.
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Plaintiff should note that although he has been given the opportunity to amend, it is not for

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the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff

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should carefully read this Screening Order and the July 5, 2016, Screening Order and focus his

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efforts on curing the deficiencies set forth in them.

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IV.

Conclusion

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint is dismissed;

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2. 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

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Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended

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complaint must bear the docket number assigned this case and must be labeled

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“Amended Complaint”; plaintiff must file an original and two copies of the amended

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complaint; failure to file an amended complaint in accordance with this order will

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result in a recommendation that this action be dismissed.

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Dated: March 31, 2017

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/DLB7;
DB/Inbox/Substantive/;gadb2015.scrn.1AC

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