IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 1, 2010
GREGORY G. CAMPBELL, PLAINTIFF,
KATHLEEN L. DICKINSON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. See Docket # 5, plaintiff's consent filed on June 22, 2009. By order filed September 28, 2009, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff filed an amended complaint on October 23, 3009, and filed a second amended complaint on December 4, 2009; thus, the second amended complaint supersedes the amended complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
The second amended complaint states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) for plaintiff's claims of violations of the Eighth Amendment and the ADA*fn2 for money damages and injunctive relief. However, to the extent he makes claims of violations of the ADA against any individual defendant, such claims may proceed only to the extent that plaintiff seeks injunctive relief and has sued such individual defendant in an official capacity. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).*fn3 In addition, plaintiff's conspiracy claims are dismissed because they are "[v]ague and conclusory allegations of official participation in civil rights violations...." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Lockary v. Kayfetz, 587 F. Supp. 631 (N. D. Cal. 1984) (conspiracy allegations must be supported by material facts and not be merely conclusory statements). Plaintiff has failed to make the requisite showing of an agreement or a meeting of the minds on the part of defendants to conspire to violate his constitutional rights. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989), citing Fonda v. Gray, 707 F.2d 435 (9th Cir. 1983).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's claims of conspiracy are dismissed; his claims of violations of the ADA against any individual defendant may proceed only to the extent such defendant is sued in an official capacity for prospective injunctive relief.
2. Service is appropriate for the following defendants: California Department of Corrections and Rehabilitation (CDCR)*fn4; CDCR Secretary Matthew Cate*fn5; Warden Kathleen Dickinson; Associate Warden Vicky Flandi; Assoc. Warden E.A. Mitchell; Assoc. Warden R. Perez; Captain Moreno; Chief Engineer Greg Block; Chief Deputy Warden Clinical Services Dr. Joseph Bick; Sergeant J. Barclay;
3. The Clerk of the Court shall send plaintiff ten (10) USM-285 forms, one summons, an instruction sheet and a copy of the second amended complaint filed December 4, 2009 (Docket # 10).
4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 2 above; and
d. Eleven (11) copies of the endorsed amended complaint filed December 4, 2009 (Docket # 10).
5. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed
1 completed summons form
10 completed USM-285 forms
11 copies of the December 4, 2009
Second Amended Complaint DATED: