United States District Court, E.D. California
M. COTA UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is plaintiff's complaint (ECF No. 1).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a “. . . short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This means that claims
must be stated simply, concisely, and directly. See
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)
(referring to Fed.R.Civ.P. 8(e)(1)). These rules are
satisfied if the complaint gives the defendant fair notice of
the plaintiff's claim and the grounds upon which it
rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th
Cir. 1996). Because plaintiff must allege with at least some
degree of particularity overt acts by specific defendants
which support the claims, vague and conclusory allegations
fail to satisfy this standard. Additionally, it is impossible
for the court to conduct the screening required by law when
the allegations are vague and conclusory.
names the California Correctional Health Care Services and
“physicians” as defendants. According to
plaintiff, defendants failed to adequately treat his varicose
veins, in violation of the Eighth Amendment. See ECF
No. 1, pg. 3.
Eleventh Amendment prohibits federal courts from hearing
suits brought against a state both by its own citizens, as
well as by citizens of other states. See Brooks v.
Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053
(9th Cir. 1991). This prohibition extends to suits against
states themselves, and to suits against state agencies.
See Lucas v. Dep't of Corr., 66 F.3d 245, 248
(9th Cir. 1995) (per curiam); Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). A state's agency
responsible for incarceration and correction of prisoners is
a state agency for purposes of the Eleventh Amendment.
See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per
curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99
(9th Cir. 1993) (en banc).
case, defendant California Correctional Health Care services,
a part of the California Department of Corrections and
Rehabilitation, is immune from suit.
state a claim under 42 U.S.C. § 1983, the plaintiff must
allege an actual connection or link between the actions of
the named defendants and the alleged deprivations. See
Monell v. Dep't of Social Servs., 436 U.S. 658
(1978); Rizzo v. Goode, 423 U.S. 362 (1976).
“A person ‘subjects' another to the
deprivation of a constitutional right, within the meaning of
§ 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). Vague and
conclusory allegations concerning the involvement of official
personnel in civil rights violations are not sufficient.
See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
Cir. 1982). Rather, the plaintiff must set forth specific
facts as to each individual defendant's causal role in
the alleged constitutional deprivation. See Leer v.
Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
allegations against defendants “physicians” fail
to meet the standard outlined above because they are not
specific as to named individuals.
it is possible that the deficiencies identified in this order
may be cured by amending the complaint, plaintiff is entitled
to leave to amend prior to dismissal of the entire action.
See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th
Cir. 2000) (en banc). Plaintiff is informed that, as a
general rule, an amended complaint supersedes the original
complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,
1262 (9th Cir. 1992). Thus, following dismissal with leave to
amend, all claims alleged in the original complaint which are
not alleged in the amended complaint are waived. See King
v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore,
if plaintiff amends the complaint, the court cannot refer to
the prior pleading in order to make plaintiff's amended
complaint complete. See Local Rule 220. An amended
complaint must be complete in itself without reference to any
prior pleading. See id.
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).
The complaint must allege in specific terms how each named
defendant is involved, and must set forth some affirmative
link or connection between each defendant's actions and
the claimed deprivation. See May v. Enomoto, 633
F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978).
plaintiff is warned that failure to file an amended complaint
within the time provided in this order may be grounds for
dismissal of this action. See Ferdik, 963 F.2d at
1260-61; see also Local Rule 110. Plaintiff is also
warned that a complaint which fails to comply with Rule 8
may, in the court's discretion, be dismissed with
prejudice pursuant to Rule 41(b). See Nevijel v. North
Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
IT IS HEREBY ORDERED that:
1. Plaintiff s complaint is dismissed with leave to amend;
2. Plaintiff shall file a first amended complaint within 30
days of the date of ...