Opinion
CV F 05 1560 LJO AWI WMW PC.
May 19, 2008
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO FILE A THIRD AMENDED COMPLAINT (THIRTY DAY DEADLINE)
Plaintiff is a state prisoner proceeding prose in a civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
On June 7, 2007, findings and recommendations were entered, recommending that Plaintiff be denied leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). Specifically, Plaintiff has suffered three dismissals that qualify as "strikes" under section 1915(g). Plaintiff filed objections to the findings and recommendations.
On September 28, 2007, an order was entered, vacating the findings and recommendations and directing Plaintiff to file an amended complaint. The order noted that, pursuant to section 1915(g), Plaintiff may not proceed in forma pauperis on his claim for damages, but he may proceed on his claims for injunctive relief. On January 25, 2008, Plaintiff filed a second amended complaint.
The second amended complaint contains conclusory allegations regarding Plaintiff's medical care. Plaintiff's statement of claim is rambling, and references treatment to Plaintiff's shoulder. The only specific conduct charged to any defendant is plaintiff's allegation that "Dr. Allen by deliberate indifference refused to acknowledge to treat foreseen dislocated shoulder as was witnessed by calif. Prison Focus as I shown him." Plaintiff attaches as an exhibit copies of his medical record.
Plaintiff can not state a claim by leveling conclusory allegations and submitting copies of medical records. Plaintiff must identify specific defendants, and charge each defendant with specific conduct that states a claim for relief. In this case, this action may only proceed on Plaintiff's claim for injunctive relief.
Under the Eighth Amendment, the government has an obligation to provide medical care to those who are incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). "In order to violate the Eighth Amendment proscription against cruel and unusual punishment, there must be a 'deliberate indifference to serious medical needs of prisoners.'" Id. (quoting Estelle v. Gamble, 429 U.S. 97. 104 (1976)). Lopez takes a two-prong approach to evaluating whether medical care, or lack thereof, rises to the level of "deliberate indifference." First, a court must examine whether the plaintiff's medical needs were serious. See Id. Second, a court must determine whether "officials intentionally interfered with [the plaintiff's] medical treatment." Id. at 1132.
The court finds the allegations in plaintiff's second amended complaint to be vague and conclusory. The court has determined that the complaint does not contain a short and plain statement as required by Fed.R.Civ.P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim.Id. Because plaintiff has failed to comply with the requirements of Fed.R.Civ.P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.
If 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). Also, the 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 addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's 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 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.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's second amended complaint is dismissed; and
2. Plaintiff is granted thirty days from the date of service of this order to file a third 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 amended complaint must bear the docket number assigned this case and must be labeled "Third Amended Complaint." Failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.
INSTRUCTIONS FOR FILING A COMPLAINT BY A PRISONER UNDER CIVIL RIGHTS STATUTE 42 U.S.C. § 1983 I. Scope of Section 1983
An action under Section 1983 is available to challenge violations of the federal constitution or federal statutes which affect the conditions of your confinement or your treatment by government employees while in custody. Although you may ask for and obtain money damages or an injunction under Section 1983, the court cannot issue an order which could affect the length of your sentence in any way. Those types of claims may be raised only through a petition for writ of habeas corpus. If you want to file a petition for a writ of habeas corpus, you must do so on the correct forms, which are provided by the Clerk of the Court on request.
A. Exhaustion of Administrative Remedies
If there is an inmate appeal or administrative remedy process available at your institution, you may not file an action under Section 1983, or any other federal law, until you have first completed (exhausted) the process available at your institution. You are required to complete (exhaust) the inmate appeal or administrative remedy process before filing suit, regardless of the relief offered by the process. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Even if you are seeking only money damages and the inmate appeal or administrative remedy process does not provide money, you must exhaust the process before filing suit. Booth, 532 U.S. at 734.
II. Packet
A copy of a complaint form is attached to this instruction sheet. In addition, included in the packet is an information sheet for prisoners seeking leave to proceed in forma pauperis (without prepayment of filing fees) and a copy of an application to proceed in forma pauperis. To file an action, you must send all the following items to the court:
1. An original and one copy of the complaint. You must keep an additional copy of the complaint for your own records. All copies of the complaint must be identical to the original. If you wish to have a conformed copy of your complaint returned to you, you must send, in addition to the original, two extra copies and provide the court with a self-addressed postage paid envelope
2. Either a completed in forma pauperis application or the $350.00 filing fee.NOTICE pre-payment See 28 U.S.C. § 1915 : Leave to proceed in forma pauperis allows a case to proceed without of the filing fee. However, a prisoner who brings a civil action in forma pauperis shall nevertheless be required to pay the full amount of the filing fee. The court shall collect the filing fee through deductions from the prisoner's trust account. Dismissal of the case does not excuse payment of the full filing fee. .
III. Complaint Form
Your complaint must be legibly handwritten or typewritten. You must sign the complaint and declare under penalty of perjury that the facts stated in the complaint are correct. If you need additional space to answer a question, you should attach an additional blank page. You are required to state facts in support of each claim. The complaint should refer to the provision of the federal constitution or federal law on which you are relying, but should not contain legal arguments or citations.IV. Venue
Your complaint should be filed in the Fresno Division of this court only if one or more of the named defendants is located in the Fresno Division of the Eastern District of California, or if your claim arose in the Fresno Division of this district. The Fresno Division of the Eastern District of California is comprised of the following counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne.
Your complaint should be filed in the Sacramento Division of this court only if one or more of the named defendants is located in the Sacramento Division of the Eastern District of California, or if your claim arose in the Sacramento Division of this district. The Sacramento Division of the Eastern District of California is comprised of the following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba.
V. Mailing the Forms
When all of the forms described in part II are completed, if you are filing your case in the Fresno Division, mail the original and copies to:
Clerk of the U.S. District Court
for the Eastern District of California
2500 Tulare Street, Suite 1501
Fresno, California 93721-2201
If you are filing your case in the Sacramento Division, mail the original and copies to:
Clerk of the U.S. District Court
for the Eastern District of California
501 "I" Street, Suite 4-200
Sacramento, California 95814
VI. After the Complaint is Filed
Once the complaint is filed, the court will review it and decide whether to order service of the complaint on the defendants. You will be sent a copy of any order the court issues. Because of the large volume of cases filed by inmates pending in this court, the court WILL NOT ANSWER INQUIRIES concerning the status of your complaint.
You must keep the Clerk of the Court informed of any change of address. If you fail to do so, the Clerk cannot be responsible for your failure to receive Court orders. This could result in the dismissal of your suit.
The Clerk of the Court cannot provide copies of documents to litigants, except at a charge of fifty cents ($0.50) per page. This charge also applies to litigants proceeding in forma pauperis. Therefore you must keep copies of all documents submitted to the court for your own records.
VII. Submission of Original Paper Exhibits
The Eastern District of California converted to an electronic filing, service, and storage system, effective January 3, 2005. Pro se litigants are exempt from the electronic filing requirement and must submit all documents to the court in paper. Local Rule 5-133(b)(2). Paper documents submitted by pro se litigants for filing will be scanned into the electronic court file by the Clerk's Office. After being scanned into the electronic court file, the paper documents will be retained in the Clerk's Office for a limited period of time and then discarded. Local Rule 39-138(d). For this reason, pro se litigants are cautioned not to send original exhibits to the court. If pro se litigants choose to submit exhibits to the court, the litigants shall retain their original exhibits and send photocopies to the court. 42 U.S.C. § 1983 Previous Lawsuits (list all other previous or pending lawsuits on back of this form) II. Exhaustion of Administrative Remedies ALL NOTICE: 42 U.S.C. § 1983 42 U.S.C. § 1997ebefore Booth v. Churner 532 U.S. 731 741 McKinney v. Carey 311 F.3d 1198 1999 Even if you are seeking only money damages and the inmate appeal or administrative remedy process does not provide money, you must exhaust the process before filing suit. Booth 532 U.S. at 734 Defendants Statement of Claim facts Relief.
Plaintiff's Name _________________________ Inmate No. _______________________________ Address __________________________________ __________________________________________ __________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA _________________________________________________________________________________________________________________ (Name of Plaintiff) (Case Number) vs. COMPLAINT ___________________________________ Civil Rights Act, ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ (Names of all Defendants) I. : A. Have you brought any other lawsuits while a prisoner? Yes ___ No ___ B. If your answer to A is yes, how many? ______________ Describe previous or pending lawsuits in the space below. (If more than one, use back of paper to continue outlining all lawsuits.) 1. Parties to this previous lawsuit: Plaintiff _________________________________________________________________________________________ Defendants _________________________________________________________________________________________ _________________________________________________________________________________________________________________ ____________________________________________________________________________________________________ _______________________________________ 2. Court (if Federal Court, give name of District; if State Court, give name of County) ___________________________________________________________________________________________________ 3. Docket Number _________________________ 4. Assigned Judge _____________________________________ 5. Disposition (For example: Was the case dismissed? Was it appealed? Is it still pending?) __________________________________________________________________________________________________ 6. Filing date (approx.) _________________ 7. Disposition date (approx.) _________________________ A. Is there an inmate appeal or administrative remedy process available at your institution? Yes ___ No ___ B. Have you filed an appeal or grievance concerning of the facts contained in this complaint? Yes ___ No ___ If your answer is no, explain why not ______________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ __________________________________________________________________________ C. Is the process completed? Yes ___ If your answer is yes, briefly explain what happened at each level. ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ No ___ If your answer is no, explain why not. ____________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ____________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (a). If there is an inmate appeal or administrative remedy process available at your institution, you may not file an action under Section 1983, or any other federal law, until you have first completed (exhausted) the process available at your institution. You are required to complete (exhaust) the inmate appeal or administrative remedy process filing suit, regardless of the relief offered by the process. , , (2001); , , (9th Cir. 2002). , . III. (In Item A below, place the full name of the defendant in the first blank, his/her official position in the second blank, and his/her place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.) A. Defendant _________________________________________ is employed as ___________________________________ _____________________________ at _________________________________________________________________ B. Additional defendants ________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ _____________________________________________________________________________________________ IV. (State here as briefly as possible the of your case. Describe how each defendant is involved, including dates and places. Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.) ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ __________________________________________________________ V. (State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.) ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ____________________________________________________________________________ I declare under penalty of perjury that the foregoing is true and correct. Date _____________________________ Signature of Plaintiff _____________________________________________ORDER
On April 17, 2008, an order was entered, dismissing the second amended complaint and granting Plaintiff leave to file a third amended complaint. On April 21, 2008, Plaintiff filed a notice of change of address, indicating that he has been transferred to High Desert State Prison. Accordingly, IT IS HEREBY ORDERED that:1. The Clerk's Office is directed to re-serve the April 17, 2008, order upon Plaintiff.
2. Plaintiff is granted an extension of time of thirty days from the date of service of this order in which to file an amended complaint in compliance with the order of April 17, 2008.
IT IS SO ORDERED.