(PC) Windham v. Wofford et al
Filing
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ORDER signed by Magistrate Judge Dennis M. Cota on 10/03/19 ORDERING that plaintiff may file a second amended complaint within 30 days of the date of service of this order. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SAMUEL WINDHAM, JR.,
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Plaintiff,
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No. 2:18-CV-2656-WBS-DMC-P
v.
ORDER
C. WOFFORD, et al.,
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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
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42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint (ECF No. 20).
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Plaintiff alleges each Defendant violated his Eighth Amendment right to medical treatment all
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relating to medical treatment of skin grafts. Plaintiff’s entire complaint is, once again, difficult to
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read due to illegible handwriting. Many of the claims are ambiguous and difficult to decipher.
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I. SCREENING REQUIREMENT AND STANDARD
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or 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 it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).
The Federal Rules of Civil Procedure require complaints contain a “…short and
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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.
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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual
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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s
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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.
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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation
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omitted).
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Prisoners proceeding pro se in civil rights actions are entitled to have their
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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d
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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be
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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer
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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation
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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The
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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with
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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks
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omitted); Moss, 572F.3d at 969.
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II. PLAINTIFF’S ALLEGATIONS
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Plaintiff has named twelve Defendants: (1) C. Wofford, (2) C. Shelling, (3) J.
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Medina, (4) Joseph Bick, (5) Lori W. Austin, (6) Michele Ditomas, (7) David Mathis, (8) Usha
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Pai, (9) Mohamednoor Osman, (10) Falza Rading, (11) Rick Champion, and (12) Cheryl Innis-
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Burton. Plaintiff asserts twelve claims, one per defendant. In general, Plaintiff claims that each
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defendant violated his Eighth Amendment rights by engaging in various activities that caused him
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harm due to improper treatment of his skin graft. However, Plaintiff’s claims are difficult to
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decipher and the claims are largely unclear.
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III. ANALYSIS OF COMPLAINT
Plaintiff’s first claim against C. Wofford, third claim against J. Medina, eighth
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claim against Usha Pai, eleventh claim against Rick Champion, and twelfth claim against Cherly
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Innis-Burton are the only claims currently capable of passing screening. The remaining seven
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claims fail to meet the requirements of Rule 8 and the substantive requirements of the Eighth
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Amendment.
The Federal Rules of Civil Procedure require complaints contain a “…short and
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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.
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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Claims must be
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stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.
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1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the
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defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. See Kimes v.
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Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because a plaintiff must allege, with at least some
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degree of particularity, overt acts by specific defendants which support the claims, vague and
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conclusory allegations fail to satisfy this standard. Additionally, to survive screening, Plaintiff’s
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claims must be facially plausible, which requires sufficient factual detail to allow the Court to
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reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at
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678 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.
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2009).
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Plaintiff states his Fourteenth Amendment due process right was violated.
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However, the complaint does not indicate how his due process right was violated. Rather, the
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complaint seems to raise issues of safety under the Eighth Amendment and retaliation under the
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First Amendment. For that reason, Plaintiff has failed to provide a short and plain statement of a
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claim demonstrating that he is entitled to relief. Plaintiff will be a afforded an opportunity to
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amend his complaint. Plaintiff is reminded however, that he will not be given unlimited
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opportunity to amend his complaint. As this is his second opportunity to amend, Plaintiff is
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cautioned that failure to compose a complaint that complies with Rule 8 and states a cognizable
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claim could lead to dismissal.
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Claims 2, 4, 5, 6, 7, 9, and 10, all fail to contain a short plain statement of a claim
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showing that Plaintiff is entitled to relief. The claims are difficult to read, conclusory, and fail to
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allege facts demonstrating a constitutional violation occurred. Plaintiff will be provided an
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opportunity to amend. However, Plaintiff is reminded that any amended complaint should be
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legible and clear, containing a short and plain statement of a claim showing Plaintiff is entitled to
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relief. Because some of the claims seem to indicate Plaintiff seeks to hold Defendants liable in
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their supervisor capacities, and because of Plaintiff’s pro se status, the Court has provided
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relevant law related to supervisory liability below. Plaintiff is also directed to this Court’s May
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15, 2019, order for guidance related to relevant Eighth Amendment law.
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Supervisory personnel are generally not liable under § 1983 for the actions of their
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employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no
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respondeat superior liability under § 1983). A supervisor is only liable for the constitutional
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violations of subordinates if the supervisor participated in or directed the violations. See id. The
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Supreme Court has rejected the notion that a supervisory defendant can be liable based on
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knowledge and acquiescence in a subordinate’s unconstitutional conduct because government
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officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct
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and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory
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personnel who implement a policy so deficient that the policy itself is a repudiation of
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constitutional rights and the moving force behind a constitutional violation may, however, be
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liable even where such personnel do not overtly participate in the offensive act. See Redman v.
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Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).
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When a defendant holds a supervisory position, the causal link between such
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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in
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civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the
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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.
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IV. AMENDING THE COMPLAINT
Because it may be possible that some of the deficiencies identified in this order
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may be cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal
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of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original
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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following
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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged
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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order
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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint
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must be complete in itself without reference to any prior pleading. See id. This means, in
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practical terms, if Plaintiff files an amended complaint he must not only cure the deficiencies
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identified in this order, but also reallege the cognizable claim(s) discussed in this Court’s order.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
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each named defendant is involved, and must set forth some affirmative link or connection
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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Because the complaint appears to otherwise state cognizable claims, if no amended
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complaint is filed within the time allowed therefor, the Court will issue findings and
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recommendations that the claims identified herein as defective be dismissed, as well as such
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further orders as are necessary for service of process as to the cognizable claims.
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VI. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a second amended
complaint within 30 days of the date of service of this order.
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Dated: October 3, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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