Cervantes v. Williamson, et al.

Filing 12

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/11/2016 DISMISSING plaintiff's second amended complaint; plaintiff is GRANTED 30 days to file a third amended complaint; and the Clerk shall send plaintiff the court's form for filing a civil rights action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAUL CERVANTES,

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No. 2:15-cv-2138 CKD P (TEMP)

Plaintiff,
v.

ORDER

SERGEANT WILLIAMSON et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s second amended complaint.

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SCREENING REQUIREMENT

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

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governmental entity or an 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 the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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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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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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

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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 requires that there be an actual connection or link between the

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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). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
their employees under a theory of respondeat superior and, therefore, when a named defendant
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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
PLAINTIFF’S SECOND AMENDED COMPLAINT1

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In his second amended complaint, plaintiff identifies Officer Burciaga as the sole

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defendant in this action. Plaintiff’s allegations are difficult to decipher, but he appears to take

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issue with defendant Burciaga’s conduct during an escort that took place on April 28, 2015.

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Specifically, plaintiff alleges that he had been on a hunger strike for eighteen (18) days and had

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been experiencing hallucinations. He told officers he wanted to speak to a mental health doctor

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before he came out of his cell. Defendant Burciaga told plaintiff he could see the doctor after his

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morning medical check. After seeing a nurse, plaintiff alleges that he proceeded back to his

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building and felt a hit on the top of his head. Plaintiff alleges that he fell to the floor and was

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bleeding. According to plaintiff, he has lost some vision and hearing since the incident. In terms

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of relief, plaintiff requests monetary damages and further medical care. (Sec. Am. Compl. at 3 &

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Attachs.)

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DISCUSSION

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The allegations of plaintiff’s second amended complaint are so vague and conclusory that

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the court is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The complaint does not contain a short and plain statement as required by Fed. R. Civ. P.

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8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice to the defendants and must allege facts that support the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff

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must allege with at least some degree of particularity overt acts which the defendant engaged in

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On November 24, 2015, plaintiff filed a first amended complaint. On November 30, 2015,
before the court had an opportunity to screen plaintiff’s first amended complaint, he filed a
second amended complaint. The court will proceed on plaintiff’s second amended complaint as
the operative pleading in this action.
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that support his claims. Id. Because plaintiff has failed to comply with the requirements of

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Federal Rule of Civil Procedure 8(a)(2), the court must dismiss plaintiff’s second amended

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complaint. In the interest of justice, the court will grant plaintiff leave to file a final, third

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amended complaint.

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If plaintiff chooses to pursue this action by filing a third amended complaint, he must

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allege facts therein demonstrating how the conditions complained of resulted in a deprivation of

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plaintiff’s federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.

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1980). In addition, plaintiff must allege in specific terms how the defendant was involved in the

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deprivation of plaintiff’s rights. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633

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

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

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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As this court previously advised plaintiff, to maintain an Eighth Amendment claim based

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on excessive use of force, he must allege facts showing that defendant Burciaga used force

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against him maliciously and sadistically for the “very purpose of causing harm.” Whitley v.

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Albers, 475 U.S. 312, 320-21 (1986). See also Hudson v. McMillian, 503 U.S. 1, 5 6-7 (1992)

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(“whenever prison officials stand accused of using excessive physical force in violation of the

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Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley, i.e.,

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whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

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and sadistically to cause harm.”). In any third amended complaint plaintiff elects to file, he

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should clarify how and under what circumstances defendant Burciaga used force against him. If,

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for example, plaintiff believes that defendant Burciaga unnecessarily hit him on top of his head

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and caused him to fall and suffer his alleged injuries, he needs to allege these facts in his amended

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complaint.

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Plaintiff is advised that the court will consider several factors to determine whether a use

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of force violates the Eighth Amendment, including the need for force, the relationship between

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the need for force and the amount of force used, and the extent of the threat the officers

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reasonably perceived the plaintiff posed. See Whitley, 475 U.S. at 321. A prisoner is not
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required to allege and show a “significant injury,” see Hudson, 503 U.S. at 9-10, but “an inmate

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who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state

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a valid excessive force claim.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).

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Plaintiff is reminded that the court cannot refer to prior pleadings in order to make his

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third amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files a third amended complaint, his prior pleading no longer serves

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any function in the case. Therefore, in a third amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s second amended complaint (Doc. No. 17) is dismissed;

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

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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 third amended complaint must bear the

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docket number assigned to this case and must be labeled “Third Amended Complaint”; failure to

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file a third amended complaint in accordance with this order will result in a recommendation that

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this action be dismissed without prejudice; and

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3. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil

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rights action.

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Dated: March 11, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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cerv2138.14am

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