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PEARSON v. FINN

United States District Court, E.D. California
Feb 28, 2006
No. CIV S-05-0490 LKK CMK P (E.D. Cal. Feb. 28, 2006)

Opinion

No. CIV S-05-0490 LKK CMK P.

February 28, 2006


ORDER


Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed December 7, 2005, plaintiff's amended complaint was dismissed with leave to file a second amended complaint. Plaintiff has now filed a second amended complaint.

The 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 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. See 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. See 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. See 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.

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief.See Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citingConley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question,Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

I. Background

In his second amended complaint, plaintiff states that his contentions are "clearly factual and obvious to prove facts that support excessive abuse of powers of liability under section 1983, that establishes the role that Warden Finn displayed by not requiring personnel under his authority to peform [sic] their duties in a professional manner." (Pl.'s Second Am. Compl. at 1:8-15.) Plaintiff makes reference to correctional officers disregarding his appeals, falsifying statements, conspiring to punish plaintiff for seeking emergency medical care, and failing to properly administer plaintiff's insulin. All of plaintiff's assertions are very vague and conclusory.

II. Discussion

When the court dismissed plaintiff's second amended complaint, plaintiff was cautioned that he must establish a link between the defendants and his alleged civil rights violations. The allegations in plaintiff's amended complaint are so vague and conclusory that the court is unable to determine whether the current action is frivolous or fails to state a claim for relief. See Fed.R.Civ.P 8(a)(2) (stating that a complaint must contain a short and plain statement); Neitzke, 490 U.S. at 325.

While retaliation and failure to properly administer medication may state a claim cognizable in a civil rights action, a plaintiff must connect the named defendants clearly with the claimed denial of his rights. Farmer v. Brennan, 511 U.S. 825, 837, 843 (1994) (official's liability for deliberate indifference to assault requires that official know of and disregard an "excessive risk"); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("liability under section 1983 arises only upon a showing of personal participation by the defendant (citation omitted) . . . [t]here is no respondeat superior liability under section 1983."); Johnson v. Duffy, 588 F.3d 740, 743-44 (9th Cir. 1978) (discussing "requisite causal connection" in section 1983 cases between named defendant and claimed injury);Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998),cert. denied, 525 U.S. 1154 (1999) ("A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights."). The court can neither determine the nature of plaintiff's claim against defendants, nor can the court determine what role, if any, any of the named defendants played in the alleged deprivation of plaintiff's rights. The court will, however, grant leave to file a third amended complaint.

Plaintiff is cautioned that if he chooses to file a third amended complaint, he must demonstrate to the court the factual basis of his complaint. In other words, the plaintiff must provide a concise statement of exactly how defendants have deprived him of his civil rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the third amended complaint 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); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In other words, the facts presented must show very clearly what each defendant did and how said act or acts caused injury to plaintiff.

In addition, plaintiff is reminded that the court cannot refer to a prior pleading in order to make plaintiff's second amended complaint complete. Local Rule 15-220 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 a third amended complaint, the original pleading no longer serves any function in the case. Therefore, in a third amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

III. Conclusion

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's amended complaint is dismissed; and

2. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket number assigned this case and must be labeled "Third Amended Complaint"; plaintiff must file an original and two copies of the second amended complaint; failure to file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed. See L.R. 11-110.


Summaries of

PEARSON v. FINN

United States District Court, E.D. California
Feb 28, 2006
No. CIV S-05-0490 LKK CMK P (E.D. Cal. Feb. 28, 2006)
Case details for

PEARSON v. FINN

Case Details

Full title:ROYCE A. PEARSON, Plaintiff, v. C.E. FINN, et al., Defendants

Court:United States District Court, E.D. California

Date published: Feb 28, 2006

Citations

No. CIV S-05-0490 LKK CMK P (E.D. Cal. Feb. 28, 2006)