United States District Court, E.D. California
BOOKER T. HILLERY, Plaintiff,
BRIAN DUFFY, et al., Defendants.
CAROLYN K. DELANEY JUDGE
is a state prisoner proceeding without counsel. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983, and is
proceeding in forma pauperis. This proceeding was referred to
this court pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 302. Plaintiff’s amended complaint is now before
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. §
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.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log
Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981).
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 Hosp. 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).
court has conducted the required review of plaintiff amended
complaint and finds the allegations in plaintiff’s
amended complaint are again so vague and conclusory that it
fails to state a claim upon which relief can be granted. The
amended complaint must be dismissed. However, the court will
grant plaintiff one final opportunity to state a claim upon
which relief can be granted in a second amended complaint.
plaintiff chooses to file a second amended complaint,
plaintiff must demonstrate how the conditions complained of
have resulted in a deprivation of plaintiff’s federal
constitutional or statutory rights. See Ellis v.
Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff again
asserts he has been denied adequate medical care, but he
fails to allege defendants acted with anything more than
negligence rather than the deliberate indifference required
to state a claim under the Eighth Amendment. As plaintiff has
been previously informed, in order to state a claim for
inadequate medical care under the Eighth Amendment, plaintiff
must allege facts showing a defendant was, at minimum,
deliberately indifferent to a serious medical need.
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
the second amended complaint must allege in specific terms
how each named defendant is involved. 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. 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). 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).
plaintiff is informed that the court cannot refer to a prior
pleading in order to make plaintiffs second 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 a second amended complaint, the original pleading no
longer serves any function in the case. Therefore, in a
second amended complaint, as in an original complaint, each
claim and the involvement of each defendant must be
accordance with the above, IT IS HEREBY ORDERED that:
Plaintiffs amended complaint is dismissed; and
Plaintiff is granted thirty days from the date of service of
this order to file a second amended complaint that complies
with the requirements of this order, the Civil Rights Act,
the Federal Rules of Civil Procedure, and the Local Rules of
Practice; the second amended complaint must bear the docket
number assigned this case and must be labeled “Second
Amended Complaint”; failure to file a ...