(PC) Saldana v. Spearman

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA SAMUEL SALDANA, No. 2:19-cv-0916 CKD P 12 Plaintiff, 13 v. ORDER M.E. SPEARMAN, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On May 29, 2019, the court screened plaintiff’s complaint as the court is required to due under 28 U.S.C. § 1915A(a). Plaintiff’s complaint was dismissed with leave to amend and plaintiff was given instructions as to the contents of his amended complaint.

21 As plaintiff now knows, 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. 28 U.S.C. § 1915A(b)(1),(2).

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

26 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. 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.

4 In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 12 at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 15 U.S. 232, 236 (1974).

16 The court has reviewed plaintiff’s amended complaint and finds that it still fails to state a claim upon which relief can be granted under federal law for the following reasons: 18 1. While plaintiff asserts he has been denied due process in certain respects, he fails to identify a liberty interest to which due process protection applies. Such liberty interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, [citations omitted], nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995).

24 2. Plaintiff complains about medical care but fails to adequately allege that he has suffered injury as a result of a defendant’s deliberate indifference to plaintiff’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

27 ///// ///// 1 3. Plaintiff asserts he has been injured in certain respects but fails to identify the person causing injury.

3 For these reasons, plaintiff’s amended complaint will be dismissed. Plaintiff will be given one more opportunity to amend. In drafting his second amended complaint, the plaintiff should consider the flaws in his amended complaint identified above and consider the advice given to plaintiff upon the dismissal of his original complaint including: 7 1. 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).

9 2. Plaintiff 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 12 (1976). Further vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

14 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s second amended complaint complete. Local Rule 220 requires that any amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, any amended complaint supersedes the original complaint. See Loux v. Rhay, 375 18 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.

21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s amended complaint is dismissed.

23 2. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint on the form provided by the court 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 “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.

1 3. The Clerk of the Court shall send plaintiff the court’s form-complaint for actions | arising under 42 U.S.C. § 1983 and brought by California prisoners.

3 | Dated: February 27, 2020 Po Pg, fF /- it LE ee 7 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE | 1 sald0916.14(2)