United States District Court, E.D. California
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and seeking relief
pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
requests leave to proceed in forma pauperis. Since plaintiff
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a), his request will be granted.
Plaintiff is required to pay the statutory filing fee of
$350.00 for this action. 28 U.S.C. §§ 1914(a),
1915(b)(1). By separate order, the court will direct the
appropriate agency to collect the initial partial filing fee
from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
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).
court has reviewed plaintiff's complaint and finds that
it fails to state a claim upon which relief can be granted
under federal law. Plaintiff's complaint must be
dismissed. The court will, however, grant leave to file an
plaintiff chooses to amend the complaint, plaintiff must
demonstrate how the conditions complained of have resulted in
a deprivation of plaintiff's constitutional rights.
See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
Plaintiff complains about the denial of medical care. Denial
or delay of medical care for a prisoner's serious medical
needs may constitute a violation of the prisoner's Eighth
Amendment rights. Estelle v. Gamble, 429 U.S. 97,
104-05 (1976). An individual is liable for such a violation
only when the individual is deliberately indifferent to a
prisoner's serious medical needs. Id.; see
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006);
Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
2002); Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th
Cir. 2000). 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). A difference
of opinion about the proper course of treatment is not
deliberate indifference, nor does a dispute between a
prisoner and prison officials over the necessity for or
extent of medical treatment amount to a constitutional
violation. See, e.g., Toguchi v. Chung, 391
F.3d 1051, 1058 (9th Cir. 2004). Furthermore, mere delay of
medical treatment, “without more, is insufficient to
state a claim of deliberate medical indifference.”
Shapley v. Nev. Bd. of State Prison Comm'rs, 766
F.2d 404, 407 (9th Cir. 1985). Where a prisoner alleges that
delay of medical treatment evinces deliberate indifference,
the prisoner must show that the delay caused
“significant harm and that Defendants should have known
this to be the case.” Hallett, 296 F.3d at
in his amended complaint, plaintiff 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). 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 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 HEREBY ORDERED that:
1. Plaintiffs request for leave to proceed in forma pauperis
(ECF No. 7 & 9) is granted.
2. Plaintiff is obligated to pay the statutory filing fee of
$350.00 for this action. All fees shall be collected and paid
in accordance with this court's order to the Director of
the California Department of ...