United States District Court, E.D. California
EDWARD B. SPENCER, Plaintiff,
KOKOR, et al., Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc.
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
seeks to proceed on claims under the Eighth Amendment for
deliberate indifference to his serious medical needs against
Dr. Kokor and Nurse Powell for failing to timely renew/refill
various of his medications. Plaintiff has not stated any
cognizable claims, but may be able to do so. Thus, the Court
grants him leave to file a first amended complaint.
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,
malicious, 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);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Federal Rule of Civil Procedure 8(a)
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions, ” none of which
applies to section 1983 actions. Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a).
A complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief .
. . .” Fed. R. Civ. Pro. 8(a). “Such a statement
must simply give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Swierkiewicz, 534 U.S. at 512.
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), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim that is
plausible on its face.'” Iqbal, 556 U.S.
at 678, quoting Twombly, 550 U.S. at 555. Factual
allegations are accepted as true, but legal conclusions are
not. Iqbal. at 678; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009);
Twombly, 550 U.S. at 556-557.
“plaintiffs [now] face a higher burden of pleadings
facts . . ., ” Al-Kidd v. Ashcroft, 580 F.3d
949, 977 (9th Cir. 2009), the pleadings of pro se
prisoners are still construed liberally and are afforded the
benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010). However, “the liberal pleading
standard . . . applies only to a plaintiff's factual
allegations, ” Neitze v. Williams, 490 U.S.
319, 330 n.9 (1989), “a liberal interpretation of a
civil rights complaint may not supply essential elements of
the claim that were not initially pled, ” Bruns v.
Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th
Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d
266, 268 (9th Cir. 1982), 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). The “sheer
possibility that a defendant has acted unlawfully” is
not sufficient, and “facts that are ‘merely
consistent with' a defendant's liability” fall
short of satisfying the plausibility standard.
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949;
Moss, 572 F.3d at 969.
chooses to file a first amended complaint, Plaintiff should
make it as concise as possible. He should simply state which
of his constitutional rights he feels were violated by each
Defendant and its factual basis. Where the allegations
against two or more Defendants are factually intertwined,
Plaintiff need not repeat the factual allegations separately
against each Defendant. Rather, Plaintiff should present his
factual allegations and identify the Defendants he feels are
thereby implicated. Plaintiff need not cite legal authority
for his claims in a second amended complaint as his factual
allegations are accepted as true. The amended complaint
should be clearly legible (see Local Rule 130(b)),
and double-spaced pursuant to Local Rule 130(c).
Civil Rights Act (42 U.S.C. § 1983) requires that there
be an actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by Plaintiff. See Monell v. Department of Social
Services, 436 U.S. 658 (1978); Rizzo v. Goode,
423 U.S. 362 (1976). The Ninth Circuit has held that
“[a] person ‘subjects' another to the
deprivation of a constitutional right, within the meaning of
section 1983, if he does an affirmative act, participates in
another's affirmative acts or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made.” Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In order to
state a claim for relief under section 1983, Plaintiff must
link each named defendant with some affirmative act or
omission that demonstrates a violation of Plaintiff's
must clearly identify which Defendant(s) he feels are
responsible for each violation of his constitutional rights
and their factual basis as his Complaint must put each
Defendant on notice of Plaintiff's claims against him or
her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th