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)

Download PDF
1 2 *E-Filed 2/23/12* 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 ROBERT E. JOHNSON, Plaintiff, 13 14 No. C 11-1980 RS (PR) ORDER VACATING ORDER OF SERVICE; v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 15 FRANCISCO JACQUES, et al., 16 Defendants. / 17 18 INTRODUCTION 19 20 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 21 prisoner. Plaintiff has filed a second amended complaint. Plaintiff’s motion to file such 22 complaint (Docket No. 17) is GRANTED. The Clerk shall terminate Docket No. 17. The 23 second amended complaint is now the operative complaint in this action and entirely 24 replaces, and renders inoperative, all prior complaints. The Court now reviews the second 25 amended complaint pursuant to 28 U.S.C. § 1915A (a). The order of service on the prior 26 complaint (Docket No. 6) is VACATED, and the parties are relieved of their duties 27 under that order. 28 No. C 11-1980 RS (PR) ORDER DISMISSING COMPLAINT DISCUSSION 1 2 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 3 4 seeks redress from a governmental entity or officer or employee of a governmental entity. 5 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 6 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 7 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 8 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 9 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). United States District Court For the Northern District of California 10 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 11 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 12 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 13 plausibility when the plaintiff pleads factual content that allows the court to draw the 14 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 15 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 16 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 17 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 18 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 19 (1) that a right secured by the Constitution or laws of the United States was violated, and 20 (2) that the alleged violation was committed by a person acting under the color of state law. 21 See West v. Atkins, 487 U.S. 42, 48 (1988). 22 B. 23 Legal Claims Plaintiff alleges that (1) C. Williams, (2) N. Adam, and (3) N. Ikegbu, all physicians 24 employed at Pelican Bay State Prison, along with (4) K. Vail, and (5) C. Silva, both nurses at 25 Pelican Bay, rendered constitutionally inadequate medical care in violation of plaintiff’s 26 Eighth Amendment rights. Liberally construed, plaintiff has stated cognizable claims under 27 § 1983 as to these defendants. 28 No. C 11-1980 RS (PR) ORDER OF SERVICE 2 1 Plaintiff has failed to allege facts sufficient to state claims against Robert E. Johnson, 2 Francisco Jacques, and G.D. Lewis, former and current wardens of Pelican Bay, or against 3 M. Sayre, Chief Medical Officer at Pelican Bay. Plaintiff alleges that these persons are liable 4 owing to their supervisory positions. This is insufficient to state claims under § 1983. There 5 is no respondeat superior liability under § 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 6 1989). It is not enough that the supervisor merely has a supervisory relationship over the 7 defendants; the plaintiff must show that the supervisor “participated in or directed the 8 violations, or knew of the violations and failed to act to prevent them.” Id. 9 Furthermore, supervisor defendants are entitled to qualified immunity where the United States District Court For the Northern District of California 10 allegations against them are simply “bald” or “conclusory” because such allegations do not 11 “plausibly” establish the supervisors’ personal involvement in their subordinates’ 12 constitutional wrong. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948–52 (2009) (noting no 13 vicarious liability under Section 1983 or Bivens actions). So it is insufficient for a plaintiff to 14 allege only that supervisors knew about the constitutional violation and that they generally 15 created policies and procedures that led to the violation, without alleging “a specific policy” 16 or “a specific event” instigated by them that led to the constitutional violations. Hydrick v. 17 Hunter, No. 03-56712, slip op. 280, 288–89 (9th Cir. Jan. 12, 2012). 18 Accordingly, the second amended complaint is DISMISSED WITH LEAVE TO 19 AMEND. Plaintiff shall file an amended complaint within 30 days from the date of this 20 order, or the action will be dismissed. The third amended complaint must address all the 21 deficiencies listed above, and include the caption and civil case number used in this order 22 (11-1980 RS (PR)) and the words THIRD AMENDED COMPLAINT on the first page. 23 Because an amended complaint completely replaces the previous complaints, plaintiff must 24 include in his third amended complaint all the claims he wishes to present and all of the 25 defendants he wishes to sue, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), 26 including those claims found cognizable above. Plaintiff may not incorporate material from 27 the prior complaint by reference. Failure to file an amended complaint in accordance with 28 No. C 11-1980 RS (PR) ORDER OF SERVICE 3 1 2 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 3 informed of any change of address by filing a separate paper with the clerk headed “Notice 4 of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask 5 for an extension of time to do so. Failure to comply may result in the dismissal of this action 6 pursuant to Federal Rule of Civil Procedure 41(b). 7 8 IT IS SO ORDERED. DATED: February 22, 2012 RICHARD SEEBORG United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C 11-1980 RS (PR) ORDER OF SERVICE 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?