United States District Court, E.D. California
May 8, 2014
JACKIE M. JOHNSON, Plaintiff,
CALIFORNIA MEDICAL FACILITY HEALTH SERVICES, et al., Defendants.
KENDALL J. NEWMAN, 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. By order filed March 17, 2014, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has consented to the jurisdiction of the magistrate judge (ECF No. 7), see 28 U.S.C. § 636(c), and Local Rule 305(a), and filed an Amended Complaint (ECF No. 8).
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, 127 S.Ct. 1955 (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." Bell Atlantic , 550 U.S. at 555. 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 , 550 U.S. at 555, in turn quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974).
In his original complaint, as in his Amended Complaint, plaintiff asserts an Eighth Amendment claim for deliberate indifference to his serious medical needs,  based on the allegedly premature removal of surgical stitches which allegedly resulted in significant pain and disfigurement. The court dismissed plaintiff's original complaint because his allegations were both vague and conclusory - although plaintiff named six nurses, he made specific allegations against only one of them, viz., that Supervising RN Luisa "refused to dress [the] wound, " providing only a band aid, apparently after another nurse removed the stitches. Plaintiff further claimed that, thereafter, each nurse dressed the wound differently, apparently resulting in further pain and scarring.
In his Amended Complaint, plaintiff is even less specific. While he again alleges that his stitches were prematurely removed, following surgery for a ganglion lymphoma, he does not identify which nurse removed the stitches, or which nurse provided the band aid after the incision opened, or which nurse or emergency doctor refused plaintiff's request(s) to re-stitch the incision. No specific defendant is identified in tandem with any of plaintiff's factual allegations.
The court previously informed plaintiff that he must be specific in identifying which defendant(s) allegedly engaged in what conduct. A complaint must give fair notice to defendants of the claims against them. Fed.R.Civ.P. 8(a)(2); Jones v. Cmty. Redev. Agency , 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must identify what overt acts (or failure to act) each defendant allegedly engaged in; he must allege in specific terms how each defendant allegedly violated his constitutional rights. Rizzo v. Goode , 423 U.S. 362, 371 (1976). There can be no cognizable claim or liability under Section 1983 unless there is an affirmative link or connection between a defendant's alleged action and the claimed constitutional deprivation. Id .; see also May v. Enomoto , 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy , 588 F.2d 740, 743 (9th Cir. 1978).
Pursuant to these standards, the Amended Complaint fails to state a cognizable Eighth Amendment claim against any defendant. Therefore, the court will dismiss the Amended Complaint, and grant plaintiff one final opportunity to file an adequate complaint.
The court further notes that the California Medical Facility (CMF) is not a proper defendant in this action. Section 1983 imposes liability only on "persons" who violate an individual's federal rights while acting under color of state law. CMF is not a "person" for purposes of Section 1983. Plaintiff should not name CMF as a defendant in his further amended complaint.
In the interests of justice, the court will grant plaintiff leave to file a Second Amended Complaint. Plaintiff need not file a Second Amended Complaint; however, if he chooses to do so, he must demonstrate how the conditions complained of resulted in the alleged deprivation of plaintiff's federal constitutional rights. See Ellis v. Cassidy , 625 F.2d 227 (9th Cir. 1980). The Second Amended Complaint must allege in specific terms how each named defendant was involved in the alleged deprivation of plaintiff's rights. 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).
Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. Once plaintiff files a Second Amended Complaint, the prior pleading serves no function in this case. Therefore, in a Second Amended Complaint, each claim and the involvement of each defendant must be clearly and sufficiently alleged.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's April 18, 2014 Amended Complaint (ECF No. 8) is dismissed, with leave to amend.
2. Within thirty days from the date of this order, plaintiff shall 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 Second Amended Complaint.
Plaintiff's Second Amended Complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; it shall bear the docket number assigned this case; and it must be labeled "Second Amended Complaint."
3. Failure to timely file a Second Amended Complaint in accordance with this order will result in the dismissal of this action without prejudice.