United States District Court, E.D. California
HERB L. GADBURY, Plaintiff,
STATE OF CALIFORNIA,, Defendants.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se and in forma pauperis,
seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has
consented to the jurisdiction of a magistrate judge.
original complaint was dismissed with leave to amend for
failure to state a claim. Plaintiff has now submitted a
letter, which the undersigned construes as a first amended
complaint. This pleading will be screened herein.
court is required to screen complaints brought by individuals
proceeding in forma pauperis seeking relief against a
governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). The court
must dismiss a complaint or portion thereof if the complaint
contains 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. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that . .
. the action or appeal . . . fails to state a claim upon
which relief may be granted.” 28 U.S.C. §
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)),
and courts “are not required to indulge unwarranted
inferences, ” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). While factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
section 1983, plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
5, 2016, plaintiff's original complaint was dismissed for
failure to state a claim against any of the named defendants,
California Health Care Facility (“CHCF”) Warden
Brian Duffy. Appeals Examiner K.J. Allen, and the State of
California. His claim against Warden Duffy and Allen were
based solely on their respective roles in denying
plaintiff's grievance at the second and third levels of
review, which were insufficient standing alone to state a
claim. Ramirez v. Galaza, 334 F.3d 850, 860 (9th
Cir. 2003). His claim against the State of California failed
entirely under the Eleventh Amendment. Aholelei v.
Dep't of Public Safety, 488 F.3d 1144, 1147 (9th
Cir. 2007); Brown v. California Dep't of
Corrections, 544 F.3d 747, 752 (9th Cir. 2009).
factual allegations in the first amended complaint are
minimal. He states only that (a) he eats a Hindu vegan diet,
which prohibits meat and dairy, (b) he has certain health
problems; and (c) CHCF gives him food that he cannot eat.
minimal allegations convince the undersigned that this
pleading must also be dismissed for failure to state a claim.
The document fails as a stand-alone pleading because it
responds only to certain deficiencies identified in the July
5, 2016, screening order without reasserting critical facts
or identifying the involvement of any individuals; it
identifies only the State of California as a defendant, and
it attaches numerous exhibits without a sufficient factual
underpinning in the pleading.
evident that plaintiff intends for his filing to supplement
his original complaint. This is improper. Local Rule 220
requires that an amended complaint be complete in itself
without reference to any prior pleading. As a general rule,
an amended complaint supersedes the original complaint.
See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
Once an amended complaint is filed, the original complaint no
longer serves any function in the case.
amended pleading will therefore be dismissed. If plaintiff
opts to amend, he must address the deficiencies noted in the
July 5, 2016, Screening Order and in this Screening Order.
Iqbal, 556 U.S. at 677-78. Plaintiff must set forth
“sufficient factual matter . . . to ‘state a