(PC) Cervantes v. Lee ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL CERVANTES, No. 2:20-CV-2416-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 DERRECK J. LEE, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint, ECF No. 26. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 I. PLAINTIFF’S ALLEGATIONS 8 This action proceeds on Plaintiff’s first amended complaint. Plaintiff names 9 Derrick J. Lee, a deputy attorney general, and S. Burciaga, a correctional officer, as defendants. 10 ECF No. 26, pg. 1. Plaintiff alleges the following: 11 A serious link exist between Defendant Lee and Defendant c/o S. Burciaga who is violating plaintiff Cervantes constitutional human rights, by 12 retaliating, taking advantage of his employment, CDCR staff on his side including Deputy Attorney General, Nurses, Drs, Sgts, Lits ect[.] On 13 4/30/20 through a couple of his c/o friends force me to have a violent cellie who stared a fight with me[.] I end it up getting 3 more years added 14 to my sentence[.] he is upset because I, am suing him . . . . Lee was his attorney but on 8/17/21 at 10:30AM B-yard during yard Recall c/o S. 15 Burciaga CDCR violates the eighth Amendment by placing me back with the same official I been suing since 4/28/2015 c/o S. Burciaga On 8/1721 16 c/o S. Burciaga pay out 3 crooked inmates gang members addicted to drugs hit plaintiff on the right side of face with a rock causing emergency 17 surgery [] with metal parts on head right eye upper jaw, one of the inmate talked he he got caught with a weapon on his pocket and drugs name 18 Rander, Diablo, Silent, Creeper, violation cruel, unusual punishment. It happen right on front of c/o J. Avila and Sgt. Madrigal and they did not a 19 thing to stop the attack even if I, am a disable person under ARPSADAI[.] I guess because I was suing their companion But just by being next to this 20 c/o it will be a threat to my life [] I just file a grievance to the third level response c/o S. Burciaga it will be under investigation this time this is the 21 second time he try to hurt me real bad, I, am epileptic for life because of him now I, may go blind[.] I, am my strongest witness and the video 22 camaras[.] I verify, testify under penalty of perjury that the foregoing declaration is true and correct. 23 24 Id. at 1-2 (errors in original). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. DISCUSSION 2 The Court can decipher a valid Eighth Amendment claim against Defendant 3 Burciaga for allegedly paying inmates to attack Plaintiff. However, the Court is unable to 4 determine any other cognizable claims against a named defendant. Plaintiff could have a 5 cognizable claim against officers Avila and Madrigal, but it is not clear that Plaintiff wishes to list 6 Avila and Madrigal as defendants. Further, Plaintiff has not sufficiently connected Defendant 7 Lee’s actions to a constitutional violation. 8 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 9 connection or link between the actions of the named defendants and the alleged deprivations. See 10 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 11 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 12 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 13 an act which he is legally required to do that causes the deprivation of which complaint is made.” 14 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 15 concerning the involvement of official personnel in civil rights violations are not sufficient. See 16 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 17 specific facts as to each individual defendant’s causal role in the alleged constitutional 18 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 19 Plaintiff states that there is a “link” between Defendant Lee and Defendant 20 Burciaga. ECF No. 26, pg. 1. However, that does not connect Defendant Lee to a constitutional 21 violation. The only other place Defendant Lee is mentioned is when Plaintiff states that Lee was 22 someone’s attorney. See id. Plaintiff’s complaint is deficient as to Defendant Lee, because 23 Plaintiff has not connected Defendant Lee to a constitutional violation. As to each named 24 defendant, Plaintiff must allege which Defendant took what action that caused which specific 25 constitutional violation. 26 / / / 27 / / / 28 / / / 1 I. CONCLUSION 2 Because it is possible that the deficiencies identified in this order may be cured by 3 | amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 4 | action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 5 | informed that, as a general rule, an amended complaint supersedes the original complaint. See 6 | Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the 7 | complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's amended 8 | complaint complete. See Local Rule 220. An amended complaint must be complete in itself 9 | without reference to any prior pleading. See id. 10 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 11 | conditions complained of have resulted in a deprivation of Plaintiffs constitutional rights. See 12 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 13 || each named defendant is involved and must set forth some affirmative link or connection between 14 || each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 15 | (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 16 Because the complaint appears to otherwise state a cognizable claim, if no 17 || amended complaint is filed within the time allowed therefor, the Court will issue findings and 18 || recommendations that the claims identified herein as defective be dismissed, as well as such 19 | further orders as are necessary for service of process as to the cognizable claim. 20 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a second amended 21 | complaint within 30 days of the date of service of this order. 22 23 | Dated: December 13, 2021 Sx