Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Pilcher v. Babcock

United States District Court, E.D. California

March 24, 2014

ORLANDO LEWAYNE PILCHER, Plaintiff,
v.
MIKE BABCOCK et al., Defendants.

ORDER

DALE A. DROZD, District Judge.

Plaintiff is a federal prisoner proceeding pro se. Plaintiff has brought his civil action seeking relief pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971)[1] and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes 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 trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for 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).

SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 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 where 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)). However, 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." Bell Atlantic , 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees , 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen , 395 U.S. 411, 421 (1969).

PLAINTIFF'S COMPLAINT

In his complaint plaintiff has identified Warden Babcock and seven other prison officials employed at Federal Correctional Institution, Herlong, as the defendants. Plaintiff's complaint is difficult to decipher. However, it appears plaintiff is attempting to allege that the defendants have failed to provide him with constitutionally adequate medical care. In this regard, plaintiff alleges that he has a serious head and brain injury but has not received an adequate medical examination. Instead, according to plaintiff, defendants have made sure that his daily existence has been complicated, miserable, and as uncomfortable as possible. (Compl. at 3 & Attachs.)

DISCUSSION

The allegations of plaintiff's complaint are so vague and conclusory that the court is unable to determine whether the current action is frivolous or fails to state a claim for relief. 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 to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Community 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 his claims. Id . Because plaintiff has failed to comply with the requirements of Fed.R.Civ.P. 8(a)(2), the complaint must be dismissed. However, the court will grant plaintiff leave to file an amended complaint.

If plaintiff chooses to file an amended complaint, he must allege facts demonstrating how the conditions complained of resulted in a deprivation of plaintiff's federal constitutional or statutory rights. See Ellis v. Cassidy , 625 F.2d 227 (9th Cir. 1980). In addition, plaintiff must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights. Rizzo v. Goode , 423 U.S. 362 (1976); May v. Enomoto , 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy , 588 F.2d 740, 743 (9th Cir. 1978). 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).

Plaintiff's complaint suffers from a number of deficiencies. First, the court observes that plaintiff has named a number of supervisory officials as the defendants in this action. However, plaintiff has not alleged what specific acts each of these supervisory defendants engaged in to violate his constitutional rights. Plaintiff is advised that the United States Supreme Court has held that federal officials cannot be held vicariously liable "for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal , 554 U.S. 662, 676 (2009). Therefore, when a named defendant holds a supervisorial position, the causal link between that defendant and the claimed constitutional violation must be specifically alleged. Id.

Moreover, insofar as plaintiff wishes to present a claim that he has received constitutionally inadequate medical care, he is advised that the United States Supreme Court has recognized that a Bivens action may be brought under the Eighth Amendment for damages incurred as a result of inadequate medical care. See Minneci v. Pollard, ___ U.S. ___, ___ , 132 S.Ct. 617, 622 (2012) (citing Carlson v. Green , 446 U.S. 14 (1080). However, to establish a violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege in specific terms how any named defendants were "deliberately indifferent" to his serious medical needs in either denying or providing inadequate medical care to him. See Estelle v. Gamble , 429 U.S. 97, 106 (1976) (inadequate medical care did not constitute cruel and unusual punishment unless the mistreatment rose to the level of "deliberate indifference to serious medical needs."). Deliberate indifference is "a state of mind more blameworthy than negligence" and "requires more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer v. Brennan , 511 U.S. 825, 835 (1994). Before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere indifference, ' negligence, ' or medical malpractice' will not support this cause of action." Broughton v. Cutter Lab. , 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle , 429 U.S. at 105-06). Likewise, a mere disagreement between plaintiff and defendants as to how defendants provided him with medical care fails to state a cognizable claim. See Toguchi v. Soon Hwang Chung , 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh , 90 F.3d 330, 332 (9th Cir. 1996).

Plaintiff is also 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 is 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.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) is 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 Warden of Federal Correctional Institution, Herlong, filed concurrently herewith.

3. Plaintiff's complaint is dismissed.

4. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint that complies with the requirements of this order, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned to this case and must be labeled "Amended Complaint"; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed without prejudice.

5. The Clerk of the Court is directed to send plaintiff the court's form for filing a civil rights action.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.