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Gregory C. Bontemps v. Sotak

September 19, 2011

GREGORY C. BONTEMPS, PLAINTIFF,
v.
SOTAK, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. His case was referred to the undersigned under Local Rule 302(c)(17), pursuant to 28 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff's third amended complaint, filed after two dismissals pursuant to 28 U.S.C. § 1915. The court will dismiss the third amended complaint and grant plaintiff a final opportunity to submit an amended complaint.

I. Background

The court granted plaintiff leave to proceed in forma pauperis on February 1, 2010, and dismissed the original complaint with leave to amend. Dckt. No. 9. That order explained that pursuant to 28 U.S.C. § 1915A(a), the court is directed to identify cognizable claims or dismiss the complaint, or any portion of the complaint, if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant.

The court dismissed the original complaint for failure to state a claim. The court informed plaintiff that if he intended to pursue an Eighth Amendment claim based on defendants' deliberate indifference to his medical needs, he must allege acts or omissions showing that identified defendants knew of and disregarded plaintiff's serious medical needs. The court further informed plaintiff that he must include sufficient factual allegations linking each named defendant to an act or omission that would indicate a deprivation of plaintiff's federal rights.

Plaintiff filed an amended complaint, which was not at all responsive to the court's initial screening order. Plaintiff purported to bring a class action on behalf of "all unconvicted, pre-trial detainees" as well as "post-trial detainess, convicted and sentenced prisoners, who are or will in the future be incarcerated" at Rio Consumnes Correctional Center. Dckt. No. 14 at 9. The court dismissed the first amended complaint for failure to comply with the original screening order, failure to state a claim and for failure to comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to include "a short and plain statement of the claim" showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); Dckt. No. 16.

The court granted plaintiff leave to file a second amended complaint, which plaintiff filed. The court dismissed the second amended complaint for failure to state a claim, as plaintiff had not alleged how any of the defendants' alleged actions affected any serious medical need, or if any serious medical need existed. Dckt. No. 19. The court also informed plaintiff that if he intended to pursue a First Amendment access to the courts claim, he must allege that the defendants' actions actually injured his litigation efforts. The court granted plaintiff one final opportunity file an amended complaint curing the deficiencies identified by the court in its multiple screening orders. In an abundance of caution, the court will give plaintiff one more opportunity to file an amended complaint. For the reasons stated below, the third amended complaint fails to state a claim.

II. Third Amended Complaint

Plaintiff alleges he was injured at Mule Creek State Prison in 2002. His alleged injuries included a fractured right foot and severe lower back pain. Defendant Smith was the attending doctor at Mule Creek. As a result of his injuries, doctors apparently gave plaintiff an air-cast for his right foot, a back brace, and medication.

Plaintiff claims that at some later time, he was re-arrested and placed in county jail. When he was arrested, he apparently had his air-cast and back brace and was housed on the medical floor of the jail.

Plaintiff alleges that defendants Sotak and Slayball witnessed plaintiff get into a fight with another inmate. Defendant Sotak, a doctor, allegedly took away plaintiff's cast, back brace, and medication without examining plaintiff, simply because of the fact that plaintiff had fought. At Sotak's direction, defendant Slayball allegedly moved plaintiff out of the medical floor. Plaintiff alleges defendants Sotak and Slayball were made aware of plaintiff's injuries by defendant Smith. Plaintiff claims he needed the air-cast to walk and the back brace for comfort.

Plaintiff also claims that defendants Cannon and Tidwell contacted defendant Slayball, who would move plaintiff around, in order to interfere with plaintiff's ability to speak with his attorney.

Plaintiff does not identify any theory of liability in his complaint. The court cannot determine any basis for imposing liability against defendant Smith. As for any potential claims against the remaining defendants, plaintiff is hereby informed as follows.

A. Eighth Amendment Claim

It is not clear from the complaint whether plaintiff was a pretrial detainee at the times alleged in his complaint, or a post-trial prisoner confined because of a criminal judgment and sentence. A pretrial detainee's claim for unconstitutional conditions of confinement arises from the Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment ...


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