Callender v. Beckel, et al.

Filing 16

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/19/2018 DISMISSING plaintiff's first amended complaint for failure to state a claim; and plaintiff has 30 days to file a second amended complaint.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT ANTHONY CALLENDER,

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Plaintiff,

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No. 2:17-cv-00274 CKD P

v.

ORDER

DR. BECKEL, et al.,

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Defendants.

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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. Plaintiff’s first amended complaint is now

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before the court.

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I.

Screening Standard
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, Hospital

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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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II.

Analysis

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On February 16, 2017, the court dismissed plaintiff’s original complaint with leave to

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amend because plaintiff failed to allege specific details “as to when or how” his constitutional

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rights were violated by prison psychologists and psychiatrists in the course of six years of

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Enhanced Outpatient Treatment. ECF No. 8 at 2. Instead of identifying the specific actions taken

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by each named defendant, plaintiff has expanded the scope of his first amended complaint by

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naming defendants at three different correctional institutions, including Atascadero State Hospital

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which is not even within the jurisdiction of this court. Plaintiff generally complains about the

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level of psychiatric care he has received for his mesophonia, or hypersensitivity to sounds,

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tinnitus, and depression. See ECF No. 13 at 8-35.

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In order to state an Eighth Amendment claim for inadequate medical care, “a prisoner

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must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious

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medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff must plead sufficient facts

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to permit the court to infer that (1) plaintiff had a “serious medical need,” and that (2) individual
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defendants were “deliberately indifferent” to that need. Jett v. Penner, 439 F.3d 1091, 1096 (9th

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Cir.2006). A showing of merely inadvertent or even negligent medical care is not enough to

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establish a constitutional violation. Estelle, 429 U.S. at 105–06; Frost v. Agnos, 152 F.3d 1124,

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1130 (9th Cir.1998). A difference of opinion about the proper course of treatment is not

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deliberate indifference, nor does a dispute between a prisoner and prison officials over the

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necessity for or extent of medical treatment amount to a constitutional violation. See, e.g.,

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Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th

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Cir. 1989).

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For these reasons, the court once again finds the allegations in plaintiff's first amended

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complaint to be too vague and conclusory to state a claim for relief. Furthermore, the court has

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determined that the first amended complaint does not contain a short and plain statement as

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required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy,

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a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least

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some degree of particularity overt acts which defendants engaged in that support plaintiff's claim.

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Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the

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first amended complaint must be dismissed. The court will, however, grant leave to file a second

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amended complaint.

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III.

Leave to Amend

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If plaintiff chooses to amend the complaint, he should carefully read this screening order

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and focus his efforts on curing the deficiencies set forth above. 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 v. Goode, 423 U.S. 362 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Furthermore, vague and conclusory allegations of official participation in civil rights
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violations are not sufficient. Ivey v. Board of 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 is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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

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

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

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alleged.

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

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1. Plaintiff’s first amended complaint, ECF No. 13, is dismissed for failure to state a

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claim; and
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 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; failure to file a second

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

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be dismissed.

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Dated: January 19, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/call0274.14am.new.docx

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