El v. Martel

Filing 8

ORDER granting 2 Motion to Proceed IFP signed by Magistrate Judge Carolyn K. Delaney on 4/27/17. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED; Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint. (Kastilahn, A)

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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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No. 2:17-cv-0463 KJM CKD P
Plaintiff,

v.

ORDER

MICHAEL MARTEL,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §
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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §
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636(b)(1).
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Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a
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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the
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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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Plaintiff names one defendant, the Acting Warden of California Health Care Facility.

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(ECF No. 1.) He alleges that, on July 6, 2016, he fell off a wood transfer board used as a bridge

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to get from his bed to his wheelchair. He fell onto the concrete floor of his cell and was knocked
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unconscious. (Id.) Plaintiff claims that prison staff were not trained to use the board safely, and

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that no staff responded to the emergency button when plaintiff pushed it for help. (Id.)

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The court finds the allegations in plaintiff’s complaint so vague and conclusory that it fails

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to state a claim upon which relief can be granted. Although the Federal Rules of Civil Procedure

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adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the

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claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.

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1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support plaintiff’s claim. Id.

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Additionally, supervisory personnel are generally not liable under §1983 for the actions of

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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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A defendant may be held liable as a supervisor under § 1983 if there exists “either (1) his or her

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personal involvement in the constitutional deprivation; or (2) a sufficient causal connection

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between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652

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F.3d 1202, 1207 (9th Cir. 2011), citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). A

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supervisor’s own culpable action or inaction in the training, supervision, or control of his

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subordinates may establish supervisory liability. Starr, 652 F.3d at 1208. However, allegations

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do not state a cause of action against a supervisory defendant where “there is no allegation of a

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specific policy implemented by the Defendant[] or a specific event or events instigated by the

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Defendant[] that led to” the purportedly unconstitutional conduct. Hydrick v. Hunter, 669 F.3d

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937, 942 (9th Cir. 2012) (emphasis in original).

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For these reasons, plaintiff’s complaint must be dismissed. The court will, however, grant

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leave to file an amended complaint. If plaintiff chooses to amend the complaint, plaintiff must

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demonstrate how the conditions complained of have resulted in a deprivation of plaintiff’s

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constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, plaintiff’s

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amended complaint must allege in specific terms how each named defendant is involved. There

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can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection
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between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362

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(1976). 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 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 an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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

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

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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Dated: April 27, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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