IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 11, 2011
BART LYONS, PLAINTIFF,
FOLSOM MERCY HOSPITAL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a Yolo County Jail inmate who proceeds without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. 636(b)(1) and Local Rule 302.
Plaintiff has submitted a declaration and supporting documents that make the showing required by 28 U.S.C. 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
In his complaint, plaintiff seeks to challenge the circumstances of his arrest, on January 26, 2010, by officers with the Folsom Police Department ("FPD"), and plaintiff's attendant transport to Folsom Mercy Hospital ("FMH"), due to a drug overdose. Plaintiff alleges that defendant FPD Officer Browning video-recorded plaintiff without his permission, "for purposes of 'showing high school students someone can go crazy from using meth. . .'" (Dkt. No. 1 at 3.) Plaintiff alleges that neither FPD staff nor FMH staff stopped Browning, inferring that each had a duty to do so. Plaintiff alleges that, pursuant to his arrest, FPD officers made inappropriate sexual comments to plaintiff's girlfriend, and falsely stated to plaintiff's girlfriend and other individuals in the home (apparently minors) that plaintiff had burglarized homes. Officers seized electronics (later returned) that were allegedly stolen. Plaintiff alleges that officers "tore up" plaintiff's home during the arrest and seizure of property.
Plaintiff names as defendants Browning and all other FPD officers ("names unknown") involved in plaintiff's arrest, the Folsom Police Department itself, as well as Folsom Mercy Hospital and all staff ("names unknown") who permitted the videotaping. Plaintiff seeks an order of court requiring Browning to turn over all copies of the video, and to name all individuals who viewed the video or may have a copy of the video, and seeks monetary damages against Browning, both the FPD and FMH, and each implicated FPD and FMH staff member.
Plaintiff only generally alleges that his rights have been violated under 42 U.S.C. § 1983, "under color of state law like Ruby Ridge." (Dkt. No. 1, at 3 (emphasis deleted).) Plaintiff fails to identify which federal constitutional provisions or statutes support his claims, with the exception that plaintiff alleges that the challenged videotaping constitutes a "HIPAA violation." (Id.) However, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub. L. 104-191, 110 Stat. 1936 (1996) (codified in Titles 18, 26 and 42 of the United States Code), does not provide for a private right of action. Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (citing 65 Fed. Reg. 82601 (Dec. 28, 2000); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006).
Plaintiff appears to seek to bring this action on behalf of himself, his girlfriend, and minor children. While a non-attorney may represent himself in a lawsuit, he has no authority to appear as an attorney for another adult or for a child. Moreover, while plaintiff's girlfriend can represent herself, only a lawyer can bring an action on behalf of a minor child. Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997).
Finally, plaintiff states that he has not pursued these matters in the
grievance process offered by his place of incarceration because the
"[p]arties involved have nothing to do with [the] holding facilit[y's]
grievance process. . ." (Dkt. No. 1, at 2.) However, plaintiff is
cautioned that exhaustion of available administrative remedies is a
prerequisite to filing a federal civil rights action.*fn1
42 U.S.C. 1997e(a).
The court finds the allegations in plaintiff's complaint so vague that it is unable to determine whether the current action is frivolous or fails to state a claim for relief, particularly as a prisoner civil rights action which is generally limited to challenging the conditions of a prisoner's confinement. The court has determined that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's identified legal claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions about which he complains resulted in a deprivation of his own constitutional rights. Rizzo v. Goode, 423 U.S. 362, 371 (1976). The complaint must allege in specific terms how each named defendant is involved. Id. There can be no liability under 42 U.S.C. 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
If plaintiff elects to pursue this action by filing an amended complaint, he is advised that all defendants must be identified in the caption of his pleading and that all defendants must be named, with position and place of employment, in the section of the form designated for that purpose. Use of "unnamed" or "Doe" defendants is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980). While, in some circumstances, the discovery process may be used to obtain the names of unidentified defendants, this is appropriate only when the complaint makes clear factual allegations and cognizable legal claims against a particular "Doe" defendant. However, the court cannot order service of a complaint on defendants who are not identified by name.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement exists because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperisis granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Yolo County Sheriff filed concurrently herewith.
3. Plaintiff's complaint is dismissed.
4. Within thirty days from the date of this order, plaintiff may complete the attached Notice of Amendment and submit the following documents to the court:
a. The completed Notice of Amendment; and
b. An original and one copy of the Amended Complaint.
Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, the Local Rules, and this order. An amended complaint must bear the docket number assigned to this case and be labeled "Amended Complaint." Failure to file an amended complaint in accordance with this order may result in the dismissal of this action.
5. The Clerk of Court is directed to send plaintiff: (1) one copy of plaintiff's file-endorsed original complaint (Dkt. No. 1) (per plaintiff's request), and (2) one blank "Form to be Used by a Prisoner in Filing a Complaint under the Civil Rights Act, 42 U.S.C. 1983."
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
BART LYONS, Plaintiff, v. FOLSOM MERCY HOSPITAL, et al., Defendants.
No. 2:11-cv-0268 KJN P
NOTICE OF AMENDMENT
Plaintiff hereby submits the following document in compliance with the court's order filed Amended Complaint