United States District Court, C.D. California, Eastern Division
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
ABRAMS UNITED STATES MAGISTRATE JUDGE.
August 22, 2016, plaintiff, a California state prisoner
presently held at Chuckawalla Valley State Prison
(“CVSP”), in Blythe, California, filed a pro
se civil rights action herein pursuant to 42 U.S.C.
§ 1983. Plaintiff subsequently was granted leave to
proceed without prepayment of the full filing fee. In his
Complaint, it appeared that plaintiff was purporting to raise
one claim alleging constitutionally inadequate medical care.
Plaintiff named as defendants Orry Marciano, a
physician's assistant at CVSP, and Dr. Santiago, an eye
doctor at an outside clinic. Both defendants were named in
their official capacities only. (ECF No. 1 at 3). Plaintiff
appeared to be seeking only an investigation. (Id.
accordance with the mandate of the Prison Litigation Reform
Act of 1995 (“PLRA”), the Court screened the
Complaint prior to ordering service for the purpose of
determining whether the action is frivolous or malicious; or
fails to state a claim on which relief may be granted; or
seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. §§ 1915A,
1915(e)(2); 42 U.S.C. § 1997e.
careful review of the Complaint, the Court found that
plaintiff's allegations appeared insufficient to state a
claim against any named defendant. Accordingly, the Complaint
was dismissed with leave to amend. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (holding
that a pro se litigant must be given leave to amend
his complaint unless it is absolutely clear that the
deficiencies of the complaint cannot be cured by amendment).
Plaintiff was ordered, if he desired to pursue this action,
to file a First Amended Complaint no later than December 30,
2016, remedying the deficiencies discussed in the Court's
Order. Further, plaintiff was admonished that, if he failed
to timely file a First Amended Complaint or failed to remedy
the deficiencies of his pleading as discussed therein, then
the Court would recommend that the action be dismissed with
December 23, 2016, plaintiff filed a First Amended Complaint
(“FAC”). The FAC names as defendants Orry
Marciano, a physician's assistant at CVSP; Dr. Santiago,
an eye doctor with an outside clinic; LVN Beatres, at CVSP; a
“doe” doctor at the Riverside Hospital; and the
Warden of CVSP. Plaintiff names all defendants except the
Warden in both their individual and official capacities. (ECF
No. 10 at 3-4). Plaintiff purports to raise one claim arising
from inadequate medical treatment and plaintiff's
“disability.” (Id. at 5). The FAC
appears to be seeking an investigation. (Id. at 6).
The Court has once again screened the FAC prior to ordering
Court's screening of the pleading under the foregoing
statutes is governed by the following standards. A complaint
may be dismissed as a matter of law for failure to state a
claim for two reasons: (1) lack of a cognizable legal theory;
or (2) insufficient facts under a cognizable legal theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990); see also Rosati v.
Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (in
determining whether a complaint should be dismissed under the
PLRA, courts apply the standard of Fed.R.Civ.P. 12(b)(6)).
Further, with respect to a plaintiff's pleading burden,
the Supreme Court has held that: “a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. … Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167
L.Ed.2d 929 (2007) (internal citations omitted, alteration in
original); see also Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (To avoid
dismissal for failure to state a claim, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.' A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” (internal citation omitted));
Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th
Cir. 2008) (“To survive a motion to dismiss for failure
to state a claim, the plaintiff must allege ‘enough
facts to state a claim to relief that is plausible on its
face.'” (citing Twombly, 550 U.S. at
570)). Since plaintiff is appearing pro se, the
Court must construe the allegations of the pleading liberally
and must afford plaintiff the benefit of any doubt. See
Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d
621, 623 (9th Cir. 1988). Finally, in determining whether a
complaint states a claim on which relief may be granted,
allegations of material fact are taken as true and construed
in the light most favorable to plaintiff. Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1989). However,
the “tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
careful review of the FAC, the Court finds that
plaintiff's allegations once again appear insufficient to
state a claim against any named defendant. Accordingly, the
FAC is dismissed with leave to amend. If plaintiff desires to
pursue this action, he is ORDERED to file a Second Amended
Complaint no later than March 17, 2017, remedying the
deficiencies discussed below. Further, plaintiff is
admonished that if he fails to timely file a Second Amended
Complaint or fails to remedy the deficiencies of this
pleading as discussed herein, the Court will recommend that
the action be dismissed with prejudice.
PLAINTIFF'S FAC FAILS TO SET FORTH A SHORT AND PLAIN
STATEMENT IN COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE
FAC still fails to comply with Federal Rule of Civil
Procedure 8(a) and 8(d). Fed.R. Civ. P. 8(a) states:
A pleading that states a claim for relief must contain: (1) a
short and plain statement of the grounds for the court's
jurisdiction, unless the court already has jurisdiction and
the claim needs no new jurisdictional support; (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief; and (3) a demand for the relief sought,
which may include relief in the alternative or different
types of relief.
(Emphasis added). Rule 8(d)(1) provides: “Each
allegation must be simple, concise, and direct. No technical
form is required.” (Emphasis added). Although the Court
must construe a pro se plaintiff's pleadings
liberally, a plaintiff nonetheless must allege a minimum
factual and legal basis for each claim that is sufficient to
give each defendant fair notice of what plaintiff's
claims are and the grounds upon which they rest.
See, e.g., Brazil v. United States
Department of the Navy, 66 F.3d 193, 199 (9th
Cir. 1995); McKeever v. Block, 932 F.2d 795, 798
(9th Cir. 1991) (complaint must give defendants fair notice
of the claims against them). If a plaintiff fails to clearly
and concisely set forth allegations sufficient to provide
defendants with notice of which defendant is being sued on
which theory and what relief is being sought against them,
the complaint fails to comply with Rule 8. See,
e.g., McHenry v. Renne, 84 F.3d 1172,
1177-79 (9th Cir. 1996); Nevijel v. Northcoast
Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981).
Moreover, failure to comply with Rule 8 constitutes an
independent basis for dismissal of a complaint that applies
even if the claims in a complaint are not found to be wholly
without merit. See McHenry, 84 F.3d at 1179;
Nevijel, 651 F.2d at 673.
the cover page of the FAC names only Marciano as a defendant,
but the body of the FAC lists several other defendants.
Plaintiff once again is admonished that, irrespective of his
pro se status, he must comply with the Federal Rules
of Civil Procedure and the Local Rules of the United States
District Court for the Central District of California.
See, e.g., Briones v. Riviera Hotel
& Casino, 116 F.3d 379, 382 (9th Cir. 1997)
(“pro se litigants are not excused from
following court rules”); L.R. 1-3. Pursuant to
Fed.R.Civ.P. 10, the caption of the pleading must include all
defendants listed in the body of the pleading.
plaintiff names most of the defendants in their official
capacities. (ECF No. 10 at 3-4). It appears that defendants
Marciano, Beatres, and the Warden are employees of the
California Department of Corrections and Rehabilitation
(“CDCR”), which is a state agency. In Will v.
Michigan Department of State Police, 491 U.S. 58, 64-66,
109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held
that states, state agencies, and state officials sued in
their official capacities are not persons subject to civil
rights suits under 42 U.S.C. § 1983. In addition, the
Eleventh Amendment bars federal jurisdiction over suits by
individuals against a State and its instrumentalities, unless
either the State consents to waive its sovereign immunity or
Congress abrogates it. Pennhurst State School & Hosp.
v. Halderman, 465 U.S. 89, 99-100, 104 S.Ct. 900, 79
L.Ed.2d 67 (1984). To overcome this Eleventh Amendment bar,
the State's consent or Congress' intent must be
“unequivocally expressed.” Pennhurst,
465 U.S. at 99. While California has consented to be sued in
its own courts pursuant to the California Tort Claims Act,
such consent does not constitute consent to suit in federal
court. See BV Engineering v. Univ. of California,
858 F.2d 1394, 1396 (9th Cir. 1988); see also Atascadero
State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S.Ct.
3142, 87 L.Ed.2d 171 (1985) (holding that Art. III, § 5
of the California Constitution does not constitute a waiver
of California's Eleventh Amendment immunity). Finally,