(PC) Gosztyla v. Ly

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA RICHARD JOSEPH GOSZTYLA, No. 2:21-cv-1717 CKD P 12 Plaintiff, 13 v. ORDER B. LY, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983 against employees of the California Department of Corrections and Rehabilitation. On September 29, 2021, the court screened plaintiff’s complaint as the court is required to do under 28 U.S.C. § 1915A(a). The court found that the complaint fails to state a claim upon which relief can be granted and gave plaintiff leave to file an amended complaint. Plaintiff has now filed an amended complaint.

23 As plaintiff already knows, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 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.

28 28 U.S.C. § 1915A(b)(1),(2).

1 After reviewing plaintiff’s amended complaint, the court finds that it fails to state a claim upon which relief can be granted under federal law. The amended complaint must be dismissed.

3 The court will, however, grant plaintiff one more opportunity to state a claim upon which he can proceed in a second amended complaint.

5 As in plaintiff’s original complaint, plaintiff complains about dental care. With respect to claim 1, plaintiff’s allegations are vague. In order to state a claim upon which plaintiff might proceed, 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 10 (1976). Plaintiff’s allegation on page 4 of his amended complaint that “each defendant had knowledge of my need for dental care and failed to provide treatment of any kind” is not sufficient.

13 As for claim 2, the allegations do not amount to deliberate indifference to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Plaintiff complains about the manner in which treatment was provided, but his allegations amount to no more than a difference of opinion which is not sufficient to state a claim under the Eighth Amendment. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). “Deliberate indifference” can be shown by an intent to harm or actions which amount to no treatment. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

20 It appears that plaintiff is attempting to raise claims under California law. Plaintiff is informed that before he may proceed on a claim arising under California law in this court, he must comply with the terms of the California Tort Claims Act, and then plead compliance. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista Unified School Dist., 42 Cal.4th 201, 209 (2007).

26 Finally, plaintiff is informed again 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.

1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff's amended complaint is dismissed.

3 2. Plaintiff 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 “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.

9 | Dated: March 8, 2022 / hice ANKE) flo "0 CAROLYNK.DELANEY/ 11 UNITED STATES MAGISTRATE JUDGE 14] 4 15 gosz1717.14(2)