Johnson v. Jacques et al

Filing 28

ORDER VACATING ORDER OF SERVICE; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 2/22/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/23/2012)

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*E-Filed 2/23/12*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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ROBERT E. JOHNSON,
Plaintiff,

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No. C 11-1980 RS (PR)
ORDER VACATING ORDER OF
SERVICE;

v.
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

15 FRANCISCO JACQUES, et al.,
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Defendants.
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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. Plaintiff has filed a second amended complaint. Plaintiff’s motion to file such

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complaint (Docket No. 17) is GRANTED. The Clerk shall terminate Docket No. 17. The

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second amended complaint is now the operative complaint in this action and entirely

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replaces, and renders inoperative, all prior complaints. The Court now reviews the second

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amended complaint pursuant to 28 U.S.C. § 1915A (a). The order of service on the prior

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complaint (Docket No. 6) is VACATED, and the parties are relieved of their duties

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under that order.

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No. C 11-1980 RS (PR)
ORDER DISMISSING COMPLAINT

DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

United States District Court
For the Northern District of California

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

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that (1) C. Williams, (2) N. Adam, and (3) N. Ikegbu, all physicians

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employed at Pelican Bay State Prison, along with (4) K. Vail, and (5) C. Silva, both nurses at

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Pelican Bay, rendered constitutionally inadequate medical care in violation of plaintiff’s

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Eighth Amendment rights. Liberally construed, plaintiff has stated cognizable claims under

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§ 1983 as to these defendants.

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No. C 11-1980 RS (PR)
ORDER OF SERVICE

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Plaintiff has failed to allege facts sufficient to state claims against Robert E. Johnson,

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Francisco Jacques, and G.D. Lewis, former and current wardens of Pelican Bay, or against

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M. Sayre, Chief Medical Officer at Pelican Bay. Plaintiff alleges that these persons are liable

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owing to their supervisory positions. This is insufficient to state claims under § 1983. There

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is no respondeat superior liability under § 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989). It is not enough that the supervisor merely has a supervisory relationship over the

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defendants; the plaintiff must show that the supervisor “participated in or directed the

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violations, or knew of the violations and failed to act to prevent them.” Id.

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Furthermore, supervisor defendants are entitled to qualified immunity where the

United States District Court
For the Northern District of California

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allegations against them are simply “bald” or “conclusory” because such allegations do not

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“plausibly” establish the supervisors’ personal involvement in their subordinates’

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constitutional wrong. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948–52 (2009) (noting no

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vicarious liability under Section 1983 or Bivens actions). So it is insufficient for a plaintiff to

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allege only that supervisors knew about the constitutional violation and that they generally

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created policies and procedures that led to the violation, without alleging “a specific policy”

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or “a specific event” instigated by them that led to the constitutional violations. Hydrick v.

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Hunter, No. 03-56712, slip op. 280, 288–89 (9th Cir. Jan. 12, 2012).

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Accordingly, the second amended complaint is DISMISSED WITH LEAVE TO

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AMEND. Plaintiff shall file an amended complaint within 30 days from the date of this

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order, or the action will be dismissed. The third amended complaint must address all the

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deficiencies listed above, and include the caption and civil case number used in this order

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(11-1980 RS (PR)) and the words THIRD AMENDED COMPLAINT on the first page.

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Because an amended complaint completely replaces the previous complaints, plaintiff must

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include in his third amended complaint all the claims he wishes to present and all of the

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defendants he wishes to sue, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992),

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including those claims found cognizable above. Plaintiff may not incorporate material from

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the prior complaint by reference. Failure to file an amended complaint in accordance with

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No. C 11-1980 RS (PR)
ORDER OF SERVICE

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this order will result in dismissal of this action without further notice to plaintiff.
It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal of this action

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED: February 22, 2012
RICHARD SEEBORG
United States District Judge

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United States District Court
For the Northern District of California

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No. C 11-1980 RS (PR)
ORDER OF SERVICE

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