ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He has moved for leave to file an amended complaint. Additionally, defendants Cox, Huckabee and James moved to modify the pretrial schedule to extend the time for completing discovery and to file dispositive motions. For the reasons explained below, leave to file an amended complaint will be granted, but some claims in the proposed complaint must be dismissed. In light of the addition of new defendants, a new scheduling order will be issued.
Plaintiff commenced this action with his initial complaint on July 27, 2007. Before the court could screen that complaint pursuant to 28 U.S.C. § 1915A, plaintiff filed a first amended complaint which was reviewed and dismissed with yet further leave to amend. Plaintiff filed a second amended complaint, which was reviewed and found to state claims that defendants G. Costra and Huckabee used excessive force, and that R. V. Cox, L. Dial and James were deliberately indifferent to his serious medical needs. The second amended complaint did not, however, state cognizable claims against Segerstrom, Kathleen J. Adams, R. J. Leo, Michael Roche, Banner Lassen Medical Center, the Director and Chief Medical Officer of Banner Lassen Medical Center, Felker or Woodford. The court explained the deficiencies in the claims against these defendants, and explained that plaintiff could pursue the properly stated claims against Costra, Huckabee, Cox, Dial and James, or file yet another amended complaint in an attempt to cure his deficient claims. He elected to pursue the claims he already had stated, and the court dismissed all other claims without prejudice.*fn1
On March 23, 2009, plaintiff filed the instant motion to amend and a proposed amended complaint.
II. Legal Standards & Analysis
A party may amend its pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). "Rule 15(a) is very liberal and leave to amend 'shall be freely given when justice so requires.'" AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). The liberal policy in favor of amendments is subject to some limitation. Motions to amend should be granted unless the district court determines that there has been a showing of (1) undue delay, (2) bad faith on the part of the movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party by virtue of allowance of the amendment; or (5) futility of the proposed amendment. Forman v. Davis, 371 U.S. 178, 182 (1962). Where an amendment would be futile or would be subject to dismissal, the district court does not err in denying leave to amend. See Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991).
Here, defendants have not opposed the request to file an amended complaint. Moreover, none of the factors weighing against amendment are present in this action, except futility which is addressed below. Thus, as the rule provides, leave to amend will be freely given and the proposed new complaint is ordered filed. However, this recently amended complaint must be screened pursuant to 28 U.S.C. § 1915A.
Having reviewed the third amended complaint, the court finds that plaintiff has stated the following claims for relief: (1) Segerstrom and Adams were deliberately indifferent to plaintiff's serious medical needs by denying him care for a jaw injury; (2) Segerstrom and Adams discriminated against plaintiff in the administration of medical care based on plaintiff's race; (3) Cox was deliberately indifferent to plaintiff's serious medical needs by failing to refer plaintiff to a dentist for jaw x-rays and by refusing to provide plaintiff with a liquid diet; (4) Costra and Huckabee used excessive force against plaintiff in violation of the Eighth Amendment; (5) Huckabee failed to protect plaintiff from Costra; (6) Dial was deliberately indifferent to plaintiff's serious medical needs, i.e., the injuries he sustained from the attack of Costra and Huckabee; and (7) James removed plaintiff from his liquid diet in retaliation for plaintiff's having filed grievances about Cox. The court further finds that plaintiff states the following claims under state law:*fn2 (1) intentional infliction of emotional distress based on the allegations that Segerstrom and Adams denied plaintiff medical care; (2) medical malpractice based on the allegations noted above against Cox and against Dial; (3) battery based on the allegation that Costra and Huckabee used excessive force; (4) intentional infliction of emotional distress based on the allegation that defendant James removed plaintiff from his liquid diet. Plaintiff may proceed on the March 23, 2009, third amended complaint with respect to these claims.*fn3
The determination that plaintiff has stated claims against defendant Dial necessitates addressing the significance of Dial's previous default. Defendant Dial was served with process, but he failed to appear and defend against this action as required by the Federal Rules of Civil Procedure. Thus, on plaintiff's motion, the Clerk of the Court entered Dial's default. On February 6, 2009, plaintiff filed a motion for default judgment. However, the third amended complaint supersedes the prior complaints. Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956). Therefore, any default judgment sought as to Dial must be on the basis of the third amended complaint as the second amended complaint is now of no effect. Plaintiff's motion for default judgment against Dial is moot and must be denied on that ground.
For the reasons explained below, plaintiff's other claims must be dismissed. Plaintiff claims that Segerstrom, Adams, Cox, James and Dial conspired to deny plaintiff medical treatment for his jaw injury. To state a claim for conspiracy, plaintiff must allege specific facts showing two or more persons intended to accomplish an unlawful objective of causing plaintiff harm and took some concerted action in furtherance thereof. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988); Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir. 1999); Burns v. County of King, 883 F.2d 819, 822 (9th Cir. 1989) (conclusory allegations of conspiracy insufficient to state a valid § 1983 claim); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989)(plaintiff failed to allege specific facts showing agreement and concerted action among defendants); see also Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998)(to state claim for conspiracy under § 1983, plaintiff must allege facts showing an agreement among the alleged conspirators to deprive him of his rights); see also Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff must allege at least facts from which such an agreement to deprive him of rights may be inferred). Plaintiff has not alleged specific facts showing that defendants agreed to accomplish an unlawful objective. Neither does he allege facts from which any agreement could be inferred. His allegations are conclusory and, therefore, he fails to state a claim for conspiracy.
Plaintiff alleges that defendants Leo and Roche knew of Cox's and Dial's deliberate indifference to plaintiff's serious medical needs because of plaintiff's administrative appeal of their conduct, but Leo and Roche failed to investigate the matter. He also alleges that defendants Woodford and Felker knew that constitutional violations occurred regularly within the California Department of Corrections and Rehabilitation, and as supervisors they are liable for plaintiff's injuries. Section 1983 creates a cause of action against any person who, under color of state law, deprives a citizen or person within the jurisdiction of the United Sates of a constitutional right.
42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48-49 (1988). A supervisor is liable for constitutional violations of his subordinates if he participated in or directed the violations, or knew of the violations and failed to act to prevent them, Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), or if he implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation, Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989). Plaintiff expressly asserts that Leo, Roche, Woodford and Felker are subject to liability based on their supervisory responsibilities. Since this is not a basis for recovery under § 1983, plaintiff fails to state a claim for relief. Claims against these defendants must be dismissed.
Plaintiff also claims that M. Wright violated his rights by interfering with the administrative appeals investigation of Costra. In particular, plaintiff asserts that Wright somehow prevented plaintiff from pursuing a citizen's complaint. Insofar as plaintiff seeks to make a claim that Wright has violated the Due Process Clause of the Fourteenth amendment, such a claim fails. Prisoners have "no legitimate claim of entitlement to a grievance procedure." Mann v. Adams, 855 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 898 (1988). This claim must be dismissed.
Plaintiff claims that all defendants are subject to liability under 42 U.S.C. § 1986.*fn4 A predicate for bringing suit under § 1986 is stating a claim under 42 U.S.C. § 1985.*fn5 42 U.S.C. 1986; see also McCalden v. California Library Association, 955 F.2d 1214, 1223 (9th Cir. 1990). As explained above, plaintiff fails to allege facts stating a claim for conspiracy. He therefore fails to state a claim ...