(PC) Barba v. Smith ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS BARBA, No. 2:19-CV-1649-DMC-P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, 15 Defendant. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (ECF No. 1). 20 The court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 Plaintiff names the California Correctional Health Care Services and “physicians” 8 as defendants. According to plaintiff, defendants failed to adequately treat his varicose veins, in 9 violation of the Eighth Amendment. See ECF No. 1, pg. 3. 10 The Eleventh Amendment prohibits federal courts from hearing suits brought 11 against a state both by its own citizens, as well as by citizens of other states. See Brooks v. 12 Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition 13 extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t 14 of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th 15 Cir. 1989). A state’s agency responsible for incarceration and correction of prisoners is a state 16 agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 17 (1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en banc). 18 In this case, defendant California Correctional Health Care services, a part of the 19 California Department of Corrections and Rehabilitation, is immune from suit. 20 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 21 connection or link between the actions of the named defendants and the alleged deprivations. See 22 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 23 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 24 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 25 an act which he is legally required to do that causes the deprivation of which complaint is made.” 26 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 27 concerning the involvement of official personnel in civil rights violations are not sufficient. See 28 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 1 specific facts as to each individual defendant’s causal role in the alleged constitutional 2 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 3 Plaintiff’s allegations against defendants “physicians” fail to meet the standard 4 outlined above because they are not specific as to named individuals. 5 Because it is possible that the deficiencies identified in this order may be cured by 6 amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire 7 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 8 informed that, as a general rule, an amended complaint supersedes the original complaint. See 9 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 10 amend, all claims alleged in the original complaint which are not alleged in the amended 11 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 12 plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make 13 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 14 complete in itself without reference to any prior pleading. See id. 15 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 16 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 17 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 18 each named defendant is involved, and must set forth some affirmative link or connection 19 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 20 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 21 Finally, plaintiff is warned that failure to file an amended complaint within the 22 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 23 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 24 with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 25 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 26 / / / 27 / / / 28 / / / 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's complaint is dismissed with leave to amend; and 3 2. Plaintiff shall file a first amended complaint within 30 days of the date of 4 | service of this order. 5 6 7 | Dated: September 9, 2019 Ssvcqo_ 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28