United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. On May 6, 2019, the
undersigned recommended that this action be dismissed based
on plaintiff's failure to provide a signed complaint. On
June 20, 2019, plaintiff was granted an additional thirty
days in which to correct the omission. On July 1, 2019,
plaintiff submitted a signed page three of his complaint.
Good cause appearing, the May 6, 2019 findings and
recommendations are vacated.
seeks relief pursuant to 42 U.S.C. § 1983, and has
requested leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This proceeding was referred to this
court by Local Rule 302 pursuant to 28 U.S.C. §
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis is granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 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
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's 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 when 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), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to
relief,' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). In order to survive
dismissal for failure to state a claim, a complaint must
contain more than “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Id. at 555.
However, “[s]pecific facts are not necessary; the
statement [of facts] need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Erickson v. Pardus, 551 U.S.
89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at
555, citations and internal quotations marks omitted). In
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
alleges that on April 27, 2018, while he was on Work
Group/Privilege Group “A-2/B” status, defendant
Rocha “commanded plaintiff to go to dayroom against
normal protocol which plaintiff would have been locked in
shower.” (ECF No. 1 at 5.) Plaintiff alleges that
defendant Carpinter, Control Booth Officer, opened
plaintiff's cell door against protocol. (Id.) As
a result, plaintiff was forced into the dayroom where he was
maliciously and sadistically attacked and stabbed in the
jugular vein. Plaintiff states he “never had any
trouble with either inmate, ” and neither inmate
received a rules violation report or criminal charges for
attempted murder. Plaintiff claims “[b]oth defendants
were either negligent or intentional.” (Id.)
Plaintiff seeks money damages for defendants' failure to
allegations are insufficient to state a cognizable Eighth
Amendment complaint. “[A] prison official violates the
Eighth Amendment only when two requirements are met. First,
the deprivation alleged must be, objectively, sufficiently
serious, a prison official's act or omission must result
in the denial of the minimal civilized measure of life's
necessities.” Farmer v. Brennan, 511 U.S. 825,
834 (1970) (internal quotation marks and citations omitted).
Second, the prison official must subjectively have a
sufficiently culpable state of mind, “one of deliberate
indifference to inmate health or safety.” Id.
(internal quotation marks and citations omitted). The
official is not liable under the Eighth Amendment unless he
“knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.” Id. at 837. Then he must fail to
take reasonable measures to abate the substantial risk of
serious harm. Id. at 847. Mere negligent failure to
protect an inmate from harm is not actionable under §
1983. Farmer, 511 U.S. at 835.
plaintiff fails to demonstrate that either defendant was
aware that the inmates in the dayroom posed a substantial
risk to plaintiff's safety. Indeed, plaintiff suggests
that defendants' action may have been negligent, and
states that plaintiff had not had any prior difficulty with
either inmate who attacked plaintiff. Such allegations are
insufficient to state an Eighth Amendment violation. The
court will, however, grant leave to file an amended
plaintiff chooses to amend the complaint, plaintiff must
demonstrate how the conditions about which he complains
resulted in a deprivation of plaintiff's constitutional
rights. See, e.g., West v. Atkins, 487 U.S.
42, 48 (1988). Also, the complaint must allege in specific
terms how each named defendant is involved. Rizzo v.
Goode, 423 U.S. 362, 371 (1976). 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, 423 U.S.
at 371; May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
1980). Furthermore, vague and conclusory allegations of
official participation in civil rights violations are not
sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,
268 (9th Cir. 1982). As stated, negligence on the part of
defendants is insufficient to state an Eighth Amendment
addition, 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 requirement exists because, as a general
rule, an amended complaint supersedes the original complaint.
See Ramirez v. County of San Bernardino, 806 F.3d
1002, 1008 (9th Cir. 2015) (“an ‘amended
complaint supersedes the original, the latter being treated
thereafter as non-existent.'” (internal citation
omitted)). Once plaintiff files an amended complaint, the
original pleading no ...