El v. Martel

Filing 16

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/5/2018 DISMISSING 15 Second Amended Complaint and GRANTING Plaintiff 30 days from the date of service of this order to file a Third Amended Complaint. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC EL,

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Plaintiff,

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No. 2:17-CV-00463 KJM CKD P

v.

ORDER

MICHAEL MARTEL,

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Defendant.

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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 second amended complaint is

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now before the court.1

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I.

Screening Standard

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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 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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Before the court could screen plaintiff’s first amended complaint filed on June 2, 2017, plaintiff
filed a second amended complaint. As a result, the first amended complaint was superseded by
the subsequently filed complaint and will not be screened. See Loux v. Rhay, 375 F.2d 55, 57
(9th Cir. 1967).
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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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II.

Second Amended Complaint

Plaintiff is an inmate at the California Health Care Facility in Stockton (“CHCF”). The

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second amended complaint identifies one nurse and three certified nursing assistants at CHCF as

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defendants. Plaintiff spends the majority of his second amended complaint explaining how his

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amnesia that was caused from falling off a board has resolved itself. ECF No. 15 at 3, 5. The

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remaining portions of the second amended complaint describe verbal arguments defendants

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engaged in on an unspecified date concerning who was responsible for helping plaintiff get to the

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toilet in his cell. ECF No. 15 at 3-4. In a single sentence plaintiff then states that he “tried [sic]

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to get in his wheel chair with the board and fell [because] it did not look like any help was going

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to be comeing [sic] any time soon….” Id. at 4. Plaintiff states that defendants violated prison

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regulations by bickering with one another rather than helping him. Id. at 7. By way of relief,

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plaintiff seeks five million dollars in damages. Id. at 6.

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III.

Analysis

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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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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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Here, plaintiff focuses on the state regulations that defendants purportedly violated.

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However, that is not sufficient to establish a separate and independent cause of action for

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violating the Eighth Amendment. At most, plaintiff establishes that defendants were negligent in

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arguing with each other rather than immediately attending to plaintiff’s medical needs. For these

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reasons, the court finds the allegations in plaintiff's second amended complaint so vague and

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conclusory that it is unable to determine whether the current action is frivolous or fails to state a

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claim for relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must

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give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support plaintiff's claim. Id.

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Accordingly, the second amended complaint must be dismissed. The court will, however, grant

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leave to file a third amended complaint.

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IV.

Leave to Amend

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If plaintiff chooses to file a third amended complaint, plaintiff must demonstrate how the
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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 third 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 third 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 third amended complaint, the original pleading

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no longer serves any function in the case. Therefore, in a third 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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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s second amended complaint is dismissed; and

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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 this case and must be labeled “Third Amended Complaint”; plaintiff

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must file an original and two copies of the third amended complaint; failure to file a third

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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: February 5, 2018

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12/el0463.14amd.new

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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