“an ‘amended complaint 13 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 14 omitted)
How later courts described this case
- “an ‘amended complaint 13 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 14 omitted)
- “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 21 meritless legal theories or whose factual contentions are clearly baseless.”
- analyzing 13 under the Eighth Amendment a prisoner’s claim that his health was endangered when he was 14 forced to remove asbestos without protective gear
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 DEMETRIUS DAVIS, No. 2:21-cv-0634 KJN P
12 Plaintiff,
13 v. ORDER
14 PAM, et al.,
15 Defendants.
16
17 Plaintiff is a state prisoner housed in the Sacramento County jail, proceeding pro se.1
18 Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and requested leave to proceed in forma
19 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule
20 302 pursuant to 28 U.S.C. § 636(b)(1).
21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
22 Accordingly, the request to proceed in forma pauperis is granted.
23 As discussed below, plaintiff’s complaint is dismissed with leave to amend.
24 Screening Standards
25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.
26 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in
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28 1 Plaintiff is an AB 109 inmate serving his prison sentence in county jail. (ECF No. 6.)
1 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court directs the
2 appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward
3 it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments of twenty
4 percent of the preceding month’s income credited to plaintiff’s trust account. These payments
5 will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in
6 plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.
7 § 1915(b)(2).
8 The court is required to screen complaints brought by prisoners seeking relief against a
9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
10 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
11 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
13 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
14 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
15 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an
16 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
17 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
18 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
19 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
20 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
21 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
22 1227.
23 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
24 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
25 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
26 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
27 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a
28 formulaic recitation of the elements of a cause of action;” it must contain factual allegations
1 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.
2 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the
3 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
4 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
5 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as
6 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the
7 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
8 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
9 Plaintiff’s Complaint
10 Plaintiff alleges that while working with a dull knife, steadily cutting, the knife slipped
11 and badly severed plaintiff’s thumb. Plaintiff claims he needed stitches, but never received the
12 proper medical attention. Plaintiff claims that he did not sign a release of liability and was not
13 provided proper training on how to use a knife. Plaintiff states he was given days off with
14 improper healing. As defendants, plaintiff names Pam and Tammy (“the boss”) who are both free
15 staff who work in the RCCC kitchen. Plaintiff sets forth no specific relief he seeks.
16 Eighth Amendment: Prison Work Conditions
17 The Constitution does not mandate comfortable prisons, but neither does it permit
18 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner
19 receives in prison or while housed at the county jail and the conditions under which he is confined
20 are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31
21 (1993). The Eighth Amendment imposes duties on prison officials to provide prisoners with the
22 basic necessities of life, such as food, clothing, shelter, sanitation, medical care, and personal
23 safety. See Farmer, 511 U.S. at 832. A plaintiff alleging that conditions of confinement amount
24 to cruel and unusual punishment prohibited by the Eighth Amendment must satisfy a two-prong
25 test. Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, a plaintiff must satisfy an objective test
26 showing that “he is incarcerated under conditions posing a substantial risk of serious harm.”
27 Farmer, 511 U.S. at 834. In determining whether a deprivation of a basic necessity is sufficiently
28 serious to satisfy the objective component of an Eighth Amendment claim, courts consider the
1 circumstances, nature, and duration of the deprivation. See Johnson v. Lewis, 217 F.3d 726, 731
2 (9th Cir. 2000). Second, the plaintiff must show that the prison official inflicted the deprivation
3 with a “sufficiently culpable state of mind,” that is, with “deliberate indifference” to his health or
4 safety. Farmer, 511 U.S. at 834. The deliberate indifference standard requires that the official
5 know of and disregard an excessive risk to inmate health or safety. See id. at 837. The official
6 must both be aware of facts from which the inference could be drawn that a substantial risk of
7 serious harm exists, and he must also draw the inference. See id.
8 “[T]he Eighth Amendment is implicated in the prison work context only when a prisoner
9 employee alleges that a prison official compelled him to ‘perform physical labor which [was]
10 beyond [his] strength, endanger[ed his life] or health, or cause[d] undue pain.’” Morgan v.
11 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (quoting Berry v. Bunnell, 39 F.3d 1056, 1057
12 (9th Cir. 1994) (per curiam)); see also Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995) (analyzing
13 under the Eighth Amendment a prisoner’s claim that his health was endangered when he was
14 forced to remove asbestos without protective gear).
15 Here, the complaint fails to state a claim for an Eighth Amendment violation, as both
16 prongs of an Eighth Amendment claim are missing. Using a dull knife does not amount to an
17 objectively serious condition. Compare Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)
18 (defective prison oven, by itself, does not create objectively insufficiently humane condition in
19 violation of the Eighth Amendment), and id. at 938 (noting that “minor safety hazards were found
20 not to violate the Eighth Amendment” in earlier cases involving the existence of a greasy
21 staircase which caused a prisoner to slip and fall, the failure to repair leaking dishwasher which
22 resulted in a pool of soapy water in which prisoner slipped, and a slippery kitchen floor), with
23 Morgan, 465 F.3d at 1044, 1046 (summary judgment on Eighth Amendment claim properly
24 denied in case brought by prisoner whose thumb was torn off by a printing press that was known
25 to have loose chains that “caused the press to buck and shake”), and Wallis, 70 F.3d at 1076-77
26 (requiring inmates to clean from attic material known to contain dangerous asbestos without
27 protective gear demonstrated deliberate indifference). Cutting one’s thumb while using a dull
28 knife to cut vegetables is insufficient to demonstrate an Eighth Amendment violation. Plaintiff
1 does not allege an objectively serious condition necessary for an Eighth Amendment conditions
2 of confinement claim.
3 The complaint also does not allege that any defendant acted with the requisite mental state
4 of deliberate indifference, i.e., that a prison official knew of and disregarded an excessive risk to
5 plaintiff’s health or safety. See Farmer, 511 U.S. at 837. Plaintiff identifies no wrongdoing by
6 any particular defendant.
7 Eighth Amendment: Inadequate Medical Care
8 Plaintiff refers to “improper healing” and alleges he suffered an “injury of needed
9 stitches.” (ECF No. 1 at 3.) Liberally construed, plaintiff could be attempting to claim that jail
10 staff failed to provide plaintiff medical care. However, plaintiff fails to explain how his injury
11 was not properly treated, or by whom. Thus, it is unclear whether plaintiff can state a cognizable
12 Eighth Amendment claim based on deliberate indifference to his serious medical needs. In an
13 abundance of caution, plaintiff is provided with the standards governing such claims in the event
14 he is able to amend his complaint to state a cognizable Eighth Amendment claim.
15 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
16 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,
17 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for
18 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by
19 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury
20 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need
21 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050,
22 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,
23 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by
24 “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm
25 caused by the indifference.” Jett, 39 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060).
26 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally
27 interfere with medical treatment, or it may be shown by the way in which prison physicians
28 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment,
1 the delay must have led to further harm in order for the prisoner to make a claim of deliberate
2 indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State
3 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
4 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,
5 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the
6 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but
7 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a
8 prison official should have been aware of the risk, but was not, then the official has not violated
9 the Eighth Amendment, no matter how severe the risk.’” Toguchi, 391 F.3d at 1057 (quoting
10 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of
11 medical malpractice or negligence is insufficient to establish a constitutional deprivation under
12 the Eighth Amendment.” Toguchi, 391 F.3d at 1060. “[E]ven gross negligence is insufficient to
13 establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th
14 Cir. 1990)).
15 “A difference of opinion between a prisoner-patient and prison medical authorities
16 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337,
17 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course
18 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .
19 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.”
20 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).
21 Leave to Amend
22 For the above reasons, plaintiff’s complaint must be dismissed.2 In an abundance of
23 caution, the court, however, grants leave to file an amended complaint.
24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
25 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g.,
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27 2 On May 26, 2021, plaintiff wrote a letter inquiring whether he qualifies for early release and, if
so, what steps to take. (ECF No. 6.) Plaintiff is advised that this court cannot provide legal
28 advice.
1 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how
2 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no
3 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a
4 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633
5 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official
6 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,
7 268 (9th Cir. 1982).
8 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
9 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
10 complaint be complete in itself without reference to any prior pleading. This requirement exists
11 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez
12 v.County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint
13 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation
14 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any
15 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim
16 and the involvement of each defendant must be sufficiently alleged.
17 In accordance with the above, IT IS HEREBY ORDERED that:
18 1. Plaintiff’s request for leave to proceed in forma pauperis is granted.
19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
20 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
21 §1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
22 appropriate agency filed concurrently herewith.
23 3. Plaintiff’s complaint is dismissed.
24 4. Within thirty days from the date of this order, plaintiff shall complete the attached
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26 Notice of Amendment and submit the following documents to the court:
27 a. The completed Notice of Amendment; and
28 b. An original Amended Complaint.
1 | Plaintiffs amended complaint shall comply with the requirements of the Civil Rights Act, the
2 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must
3 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.”
4 Failure to file an amended complaint in accordance with this order may result in the
5 || dismissal of this action.
6 5. The Clerk of the Court shall send plaintiff the form for filing a § 1983 action by a
7 || prisoner.
8 || Dated: June 1, 2021
Foci) Aharon
10 | aniocss.s UNITED STATES MAGISTRATE JUDGE
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DEMETRIUS DAVIS, No. 2:21-cv-0634 KJN P
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Plaintiff,
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v. NOTICE OF AMENDMENT
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PAM, et al.,
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Defendants.
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Plaintiff submits the following document in compliance with the court’s order
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filed______________.
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_____________ Amended Complaint
19 DATED:
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21 Plaintiff
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