Bennett v. US Department of Justice et al

Filing 5

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/24/2017 DISMISSING 4 Plaintiff's First Amended Complaint with leave to amend; Plaintiff is GRANTED 30 days from the date of service of this order to file a Second Amended Complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of Practice. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STACEY A. BENNETT,

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No. 2:17-cv-01903 GEB CKD (PS)

Plaintiff,
v.

ORDER

US DEPARTMENT OF JUSTICE, et al.,

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Defendants.

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Plaintiff is proceeding in this action pro se and in forma pauperis. The federal in forma

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pauperis statute authorizes federal courts to dismiss a case if the action is legally “frivolous or

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malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from

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a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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On September 22, 2017, the original complaint in this action was dismissed for failure to

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state a claim, and plaintiff was granted leave to amend. Before the court for review is plaintiff’s

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first amended complaint (“FAC”). (ECF No. 4.)

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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.
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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, 129 S. Ct. 1937, 1949 (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, 129 S. Ct.

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at 1949. 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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As with the original complaint, the court finds the allegations in the FAC 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. Plaintiff must allege with at least some degree of particularity overt acts which

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defendants engaged in that support plaintiff’s claim. Id. Because plaintiff has failed to comply

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with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will,

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however, grant leave to file a second amended complaint.

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Plaintiff’s allegations concern his medical care when he was a federal inmate at the

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Federal Correctional Institution in Herlong, California. In amending the complaint, plaintiff is

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advised of the following: Denial or delay of medical care for a prisoner’s serious medical needs

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may constitute a violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v.

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Gamble, 429 U.S. 97, 104-05 (1976). An individual is liable for such a violation only when the

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individual is deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez

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v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). A difference of opinion about the proper

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course of treatment is not deliberate indifference, nor does a dispute between a prisoner and

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prison officials over the necessity for or extent of medical treatment amount to a constitutional
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violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Moreover, there

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must be an actual causal link between the actions of the named defendants and the alleged

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constitutional deprivation. See Monell v. Dep’t of Soc. Services, 436 U.S. 658, 691–92 (1978);

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May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). The FAC fails to causally link any defendant

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to acts which caused a constitutional injury.

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The Federal Tort Claims Act provides for recovery of money damages against the United

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States for cognizable state or common law torts committed by federal officials while acting

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within the scope of their employment. 28 U.S.C. §§ 1346(b), 2674. The FTCA provides that the

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United States shall be liable in tort suits “in the same manner and to the same extent as a private

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individual under like circumstances.” 28 U.S.C. § 2674. It is the exclusive waiver of sovereign

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immunity for suits against the United States sounding in tort. 28 U.S.C. § 1346(b).

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The FTCA can extend tort liability to the U.S. government if the facts show that the

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actions taken amount to negligence under California law. The elements of a negligence claim are

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duty, breach of duty, proximate cause, and damages. In a California medical malpractice suit, the

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plaintiff must show “(1) the duty of the professional to use such skill, prudence, and diligence as

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other members of his profession commonly possess and exercise; (2) a breach of that duty;(3) a

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proximate causal connection between the negligent conduct and the resulting injury; and (4)

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actual loss or damage resulting from the professional’s negligence.” Hernandez ex rel. Telles-

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Hernandez v. Sutter Med. Ctr. of Santa Rosa, 2008 WL 2156987, at *9 n. 23 (N.D.2008) (quoting

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Hanson v. Grode, 76 Cal.App.4th 601, 606 (1999)).

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Lawsuits alleging tort claims against the United States cannot be commenced until after

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the plaintiff’s administrative claim has been denied or until six months have passed with no

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agency action on the claim. See 28 U.S.C. § 2675(a). These requirements are prerequisites to the

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FTCA’s waiver of sovereign immunity and interpreted strictly. See Vacek v. U.S. Postal

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Service, 447 F.3d 1248, 1250 (9th Cir. 2006).

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If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional

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grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a).

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Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation
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of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
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 15-220 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

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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 First Amended Complaint (ECF No. 4) is dismissed; and

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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 Federal Rules of Civil Procedure,

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

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assigned this case and must be labeled “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: October 24, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/benn1903.fac

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