United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis.
He seeks relief pursuant to 42 U.S.C. § 1983 and
California law. This proceeding was referred to this court by
Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and
plaintiff has consented to have all matters in this action
before a United States Magistrate Judge. See 28
U.S.C. § 636(c).
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.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[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).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“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.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
complaint, plaintiff alleges that in December of 2015, while
he was having hernia surgery at the San Joaquin County
General Hospital, defendant Dr. Fontecha cut one of
plaintiff's femoral arteries causing the surgery to be
aborted. Plaintiff alleges that he has suffered
“painful symptoms” as a result of the fact that
his hernia surgery was never completed.
care amounting to cruel and unusual punishment violates the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97,
104-05 (1976). A violation of the Eighth Amendment occurs
when a prisoner suffers an injury as a result of a defendant
being at least deliberately indifferent to a prisoner's
serious medical needs. Id. A showing of merely
negligent medical care is not enough to establish a
constitutional violation. Frost v. Agnos, 152 F.3d
1124, 1130 (9th Cir. 1998).
allegations in plaintiff's complaint concerning defendant
Fontecha amount to, at best, negligence rather than
deliberate indifference to serious medical needs as there are
no allegations suggesting defendant Fontecha intentionally
cut plaintiff's femoral artery and no allegations that
Fontecha was involved in plaintiff's care after the
identifies the San Joaquin County General Hospital as a
defendant in his complaint. A municipality, or a department
thereof, can be liable under § 1983 when an injury
occurs pursuant to execution of a custom or policy of the
municipality. Monell v. Dep't of Soc. Services of
N.Y.C., 436 U.S. 658, 694 (1978). Plaintiff fails to
allege any facts which reasonably suggest it was a specific
policy or custom of the San Joaquin County General Hospital
that caused him injury.
plaintiff identifies C. Smith, “Chief Physician and
Surgeon for [the California Department of Corrections and
Rehabilitation]” as a defendant. However, plaintiff
fails to allege Smith had any actual involvement in any
matters causing plaintiff injury. 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). Vague and conclusory allegations of official
participation in civil rights violations such as
plaintiff's allegations against defendant Smith are not
sufficient. Ivey v. Board of Regents, 673 F.2d 266,
268 (9th Cir. 1982).
the foregoing reasons, plaintiff's complaint fails to
state a claim upon which plaintiff may proceed in this court
and must be dismissed. The court will grant plaintiff leave to
file an amended complaint so that he may attempt to cure the
deficiencies in his pleadings.
addition to the information provided to plaintiff above,
plaintiff is 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.
accordance with the above, IT IS ...