(PC) Nance v. Unknown
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 9/10/2020 DISMISSING 19 Amended Complaint with leave to amend within 60 days from the date of this order. (Henshaw, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DELARA LARISHA NANCE,
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Plaintiff,
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No. 2:20-cv-0894 WBS DB P
v.
ORDER
UNKNOWN,
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Defendant.
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Plaintiff is a county inmate proceeding pro se with a civil rights action under 42 U.S.C. §
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1983. Plaintiff alleges they are not receiving medical, dental, or mental health care. Before the
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court is plaintiff’s first amended complaint (“FAC”) for screening. For the reasons set forth
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below, this court finds plaintiff fails to state any cognizable claims for relief. The FAC will be
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dismissed and plaintiff will be given one, final opportunity to amend the complaint to attempt to
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state a claim for relief.
BACKGROUND
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Plaintiff filed an original complaint on May 1, 2020. On screening, this court found plaintiff
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failed to state any cognizable claims for relief. Plaintiff was informed that to state a claim, they
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must: (1) identify a specific person, (2) explain what actions that person took, (3) explain how
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the person’s actions caused plaintiff harm, and (4) explain why those actions amounted to a
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violation of plaintiff’s constitutional rights. Plaintiff was given the opportunity to file an
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amended complaint. (See ECF No. 16.)
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On July 24, 2020, plaintiff filed the FAC. (ECF No. 19.) This court considers the FAC
below.
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SCREENING
As described in this court’s prior screening order, the court is required to screen complaints
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brought by prisoners to determine whether they sufficiently state claims under 42 U.S.C. § 1983.
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28 U.S.C. § 1915A(a). The prisoner must plead an arguable legal and factual basis for each claim
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in order to survive dismissal. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). In
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addition, the prisoner must demonstrate a link between the actions of each defendant and the
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deprivation of his rights. Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). “A person
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‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he
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does an affirmative act, participates in another’s affirmative acts or omits to perform an act which
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he is legally required to do that causes the deprivation of which complaint is made.” Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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In the FAC, plaintiff makes brief and non-specific allegations. Plaintiff alleges they were
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denied medical care because they suffered a “sickness” and “rapid weight loss.” Plaintiff alleges
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they were denied dental care to treat an infected mouth and tooth. Finally, plaintiff alleges they
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were denied mental health care because they have a mental disorder and they are not receiving
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their medications. As they did previously, plaintiff fails to identify a defendant or explain what
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relief they seek by bringing this case.
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None of plaintiff’s allegations are sufficient to state a claim under 42 U.S.C. § 1983. As
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plaintiff was informed in the court’s prior screening order, plaintiff must do the following if they
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wish to continue with this case:
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(1) Plaintiff must identify by name the jail official or officials who have caused them harm.
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(2) Plaintiff must explain their serious medical need.
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(3) Plaintiff must then describe the actions, or inactions, taken by the jail official that caused
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plaintiff harm with respect to that medical need.
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(4) If plaintiff is a pretrial detainee, plaintiff must show the jail official should have known
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their actions would cause plaintiff harm. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071
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(9th Cir. 2016). If plaintiff is a convicted prisoner, plaintiff must show that the jail official acted
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with deliberate indifference to plaintiff’s medical needs. Farmer v. Brennan, 511 U.S. 825, 834
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(1994).
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(5) Plaintiff must describe the harm suffered as a result of the jail official’s actions.
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(6) Finally, plaintiff must request some form of relief – money damages, an order requiring
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the defendant to take some sort of action, and/or declaratory relief.
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CONCLUSION
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This court finds that plaintiff has again failed to state any cognizable claims for relief under
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42 U.S.C. § 1983. Plaintiff will be permitted one, final opportunity to amend their complaint.
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In the amended complaint, plaintiff must address the problems with the FAC that are
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explained above and in the court’s prior screening order. Plaintiff is advised that in an amended
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complaint they must clearly identify each defendant and the action that defendant took that
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violated their constitutional rights. The court is not required to review exhibits to determine what
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plaintiff’s charging allegations are as to each named defendant. If plaintiff wishes to add a claim,
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they must include it in the body of the complaint. The charging allegations must be set forth in
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the amended complaint so defendants have fair notice of the claims plaintiff is presenting. That
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said, plaintiff need not provide every detailed fact in support of his claims. Rather, plaintiff
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should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a).
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Any amended complaint must show the federal court has jurisdiction, the action is brought in
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the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must contain a
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request for particular relief. Plaintiff must identify as a defendant only persons who personally
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participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a
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constitutional right if he does an act, participates in another’s act or omits to perform an act he is
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legally required to do that causes the alleged deprivation). “Vague and conclusory allegations of
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official participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d
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266, 268 (9th Cir. 1982) (citations omitted).
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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R.
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Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R.
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Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or
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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).
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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d
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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any
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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.
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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be
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set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema
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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,
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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.
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An amended complaint must be complete in itself without reference to any prior pleading.
E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded.
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By signing an amended complaint, plaintiff certifies they have made reasonable inquiry and
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have evidentiary support for the allegations, and for violation of this rule the court may impose
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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.
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For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as
follows:
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1. The first amended complaint (ECF No. 19) is dismissed with leave to amend.
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2. Within sixty days from the date of this order, plaintiff shall file an amended complaint
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that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure,
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and the Local Rules of Practice. The amended complaint must also bear the docket number
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assigned to this case and must be labeled “Second Amended Complaint.”
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3. Failure to file an amended complaint in accordance with this order will result in a
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recommendation that this action be dismissed.
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4. The Clerk of the Court shall send plaintiff a copy of the prisoner complaint form used in
this district.
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Dated: September 10, 2020
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DLB:9
DB/prisoner-civil rights/nanc0894.FAC scrn lta
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