(PC) Williams v. CDCR et al

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 11/9/2023 DIRECTING Plaintiff to file an amended complaint within 30 days from the date of service of this order as the first amended complaint fails to state a claim upon which relief may be granted. (Clemente Licea, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANDON JEREL WILLIAMS,

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Plaintiff,

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No. 2:21-cv-1559 AC P

v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By

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order filed October 17, 2023, plaintiff’s complaint was screened and he was given the option of

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amending the complaint or proceeding immediately on cognizable claims only. ECF No. 6.

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Plaintiff has now filed a first amended complaint. ECF No. 9.
I.

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Statutory Screening of Prisoner Complaints
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).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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“frivolous, malicious, or 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).

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A claim “is [legally] frivolous where 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). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

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theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

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640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

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stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

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constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

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Franklin, 745 F.2d at 1227-28 (citations omitted).

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

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of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

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680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

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to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain

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something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

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R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

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standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

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Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the
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pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

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II.

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First Amended Complaint
The first amended complaint alleges that defendants Lizarraga, Covello, Kernan, Diaz,

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Toche, Gipson, Bettencourt, Ahmed, Larrabee, Hold, and Altevost violated plaintiff’s rights

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under the Eighth Amendment. ECF No. 9. Plaintiff alleges that the water provided at Mule

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Creek State Prison (MCSP) for drinking and bathing is contaminated and that the named

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defendants are all supervisors with a statutory and regulatory responsibility for management of

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the prison and that they failed to provide warnings or disclosures about the water contamination.

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Id. at 1, 7-8. As a result of the contaminated water, plaintiff has suffered from constant diarrhea,

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headaches, abdominal pains, gastroesophageal reflux disease, irritable bowel syndrome, and

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infection with H. pylori. Id. at 12. He further appears to allege that defendants have violated

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various state statutes and regulations as well as the Clean Water Act (CWA) and Safe Drinking

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Water Act (SDWA). Id. at 7-11.

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III.

Failure to State a Claim
The complaint fails to state a claim against any defendant because plaintiff makes only

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conclusory allegations that the water at MCSP is contaminated and that, as supervisors,

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defendants are all liable. “There is no respondeat superior liability under section 1983,” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted), and the complaint provides no

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specifics regarding the water contamination or any defendants’ involvement in causing or failing

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to address the contamination, see Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009)

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(“’[C]onclusory allegations of law and unwarranted inferences are insufficient’ to avoid a Rule

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12(b)(6) dismissal”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“Liability under

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§ 1983 must be based on the personal involvement of the defendant.” (citing May v. Enomoto,

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633 F.2d 164, 167 (9th Cir. 1980))). Furthermore, to the extent plaintiff is attempting to bring

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state tort law claims or claims under the CWA and SDWA, he has failed to allege compliance

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with the applicable notice statutes. See State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240,

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1237 (2004) (for claims against the state, timely presentation of a claim under the Government
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Claims Act is an element of the cause of action and must be pled in the complaint); Cal. Gov’t

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Code § 900.6 (defining “State” as “the State and any office, officer, department, division, bureau,

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board, commission or agency of the State claims against which are paid by warrants drawn by the

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Controller”); Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir.

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2009) (providing sixty-day notice required by Clean Water Act is “a jurisdictional necessity”

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(citations omitted)); Curtis v. City of Bullhead, 69 F. App’x 377 (9th Cir. 2003) (noting SDWA

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and CWA have identical notice requirements and holding district court correctly concluded it

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lacked subject matter jurisdiction where there was not adequate notice under Clean Water Act and

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Safe Drinking Water Act). For these reasons, the first amended complaint fails to state a claim

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for relief.

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IV.

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Leave to Amend
The complaint does not state any cognizable claims for relief and plaintiff will be given an

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opportunity to file an amended complaint. If plaintiff chooses to file an amended complaint, he

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must demonstrate how the conditions about which he complains resulted in a deprivation of his

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constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). The complaint must also

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allege in specific terms how each named defendant is involved. Arnold v. Int’l Bus. Machs.

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Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983

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unless there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and

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conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v.

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Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).

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Plaintiff is also informed that the court cannot refer to a prior pleading in order to make

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his amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th

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Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled

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in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint,
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any previous complaints no longer serve any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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V.

Plain Language Summary of this Order for a Pro Se Litigant

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Your complaint will not be served because the facts you alleged are not enough to state a

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claim. You have not alleged any facts regarding the defendants’ own actions. The fact that they

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are supervisors or have a duty under state law to manage the water is not enough to state a claim

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against them under § 1983. They must have personally participated in the violation. You also

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have not alleged that you complied with the notice of claim statutes for state tort law claims or

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claims under the Clean Water Act and Safe Drinking Water Act.

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You may amend your complaint to try to fix these problems. Be sure to provide facts that

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show exactly what each defendant did to violate your rights or to cause a violation of your rights.

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If you choose to file an amended complaint, it must include all claims you want to bring.

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Once an amended complaint is filed, the court will not look at any information in your previous

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complaints. Any claims and information not in the amended complaint will not be

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considered.

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

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1. The first amended complaint fails to state a claim upon which relief may be granted,

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see 28 U.S.C. § 1915A, and will not be served.

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2. Within thirty days from the date of service of this order, plaintiff may 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

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number assigned this case and must be labeled “Second Amended Complaint.” Failure to file an

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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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3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

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form used in this district.

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DATED: November 9, 2023

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