a person subjects another to the deprivation of a 7 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 8 legally required to do that causes the alleged deprivation
How later courts described this case
- a person subjects another to the deprivation of a 7 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 8 legally required to do that causes the alleged deprivation
- the “‘amended complaint supersedes the original, the latter 21 being treated thereafter as non-existent.’”
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 BENJAMIN F. ELLIS, No. 2:21-cv-1635-WBS-EFB P
12 Plaintiff,
13 v. ORDER
14 R. BROWN, et al.,
15 Defendants.
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17 Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to
18 42 U.S.C. § 1983. Plaintiff has paid the filing fee.1 For the reasons stated below, plaintiff’s
19 complaint is dismissed with leave to amend.
20 Screening Standards
21 Federal courts must engage in a preliminary screening of cases in which prisoners seek
22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
23 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
24 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
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1 Accordingly, plaintiff’s previously filed motion for leave to proceed in forma pauperis
27 (ECF No. 5) is moot, and the court withdraws its December 7, 2021 findings and
recommendations (ECF No. 9) to deny that application because of an inadequate showing of
28 indigency.
1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such
2 relief.” Id. § 1915A(b).
3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and
5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the
6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8,
9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556
10 U.S. 662, 679 (2009).
11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked
12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of
13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of
14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at
15 678.
16 Furthermore, a claim upon which the court can grant relief must have facial plausibility.
17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
18 content that allows the court to draw the reasonable inference that the defendant is liable for the
19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a
20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.
21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the
22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
23 Screening Order
24 Plaintiff’s complaint (ECF No. 1) alleges the following: Plaintiff’s serious medical needs
25 include chronic pain, hypertension, liver disease, fibrosis, T4 paraplegic, degenerative joint
26 disease, and meningitis. Plaintiff is prone to urinary tract infections and decubitus ulcers. Id. at
27 11. On an unspecified date, plaintiff was told by defendant Brown that he would be transferred
28 from the California Medical Facility (“CMF”) because of an institutional need to make housing
1 changes for purposes of Covid-19 housing planning. Id. at 11-14. Plaintiff told Brown that he
2 was at high risk of complications from Covid-19 and that he did not want to be transferred. Id.
3 Brown responded that if plaintiff refused to be transferred, then plaintiff would have to be housed
4 in administrative segregation. Id. at 12. Defendants Brown, Cueva, and Gipson all approved
5 plaintiff’s transfer out of CMF. Id. 13, 14.
6 On October 9, 2021, plaintiff was transferred to the California Health Care Facility
7 (“CHCF”). Id. at 12. Plaintiff was supposed to be housed in a single cell that was compliant with
8 the Americans with Disability Act, but none was available and he was stuck in the “crisis unit”
9 (for suicidal inmates) for five weeks. Id. at 13. Before long, plaintiff developed a decubitus
10 ulcer. Id. He then contracted legionaries’ disease from contaminated water at CHCF, which led
11 to pneumonia and a urinary tract infection. Plaintiff also became infected with Covid-19. Id.
12 Plaintiff claims that defendant Burton, the warden at CHCF should not have accepted plaintiff
13 into his prison knowing there had been outbreaks of both Covid-19 and legionnaires disease. Id.
14 at 14.
15 Plaintiff asserts Eighth Amendment deliberate indifference to safety and medical needs
16 claims against all defendants. Id. at 16-17. Plaintiff’s claims cannot survive screening. Eighth
17 Amendment liability arises only where a prison official “knows that inmates face a substantial
18 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”
19 Farmer v. Brennan, 511 U.S. 825, 847 (1994). Although plaintiff did not want to be transferred
20 from CMF, it does not follow that a transfer necessarily posed a substantial risk of serious harm
21 to plaintiff. Rather, plaintiff was informed that the transfer was prompted by CMF’s need to
22 change its housing structure in response to the Covid-19 pandemic. Despite the very serious
23 medical problems that plagued plaintiff following the transfer, the CMF defendants did not
24 approve of the transfer knowing these problems were inevitable or even likely. The complaint
25 also fails to specify facts showing how the CHCF warden acted with deliberate indifference to
26 plaintiff’s health and safety in violation of the Eighth Amendment. That there had been outbreaks
27 of Covid-19 and legionaries disease at CHCF is not enough.
28 /////
1 Leave to Amend
2 Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an
3 amended complaint it should observe the following:
4 Any amended complaint must identify as a defendant only persons who personally
5 participated in a substantial way in depriving him of a federal constitutional right. Johnson v.
6 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a
7 constitutional right if he does an act, participates in another’s act or omits to perform an act he is
8 legally required to do that causes the alleged deprivation). The complaint should also describe,
9 in sufficient detail, how each defendant personally violated or participated in the violation of his
10 rights. The court will not infer the existence of allegations that have not been explicitly set forth
11 in the amended complaint.
12 The amended complaint must contain a caption including the names of all defendants.
13 Fed. R. Civ. P. 10(a).
14 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See
15 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
16 Any amended complaint must be written or typed so that it so that it is complete in itself
17 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended
18 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the
19 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114
20 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter
21 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
22 1967)).
23 Finally, the court notes that any amended complaint should be as concise as possible in
24 fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of
25 procedural or factual background which has no bearing on his legal claims.
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1 Conclusion
2 Accordingly, IT IS ORDERED that:
3 1. The December 7, 2021 findings and recommendations (ECF No. 9) are withdrawn;
4 2. Plaintiff’s complaint (ECF No. 1) is DISMISSED with leave to amend within 30
5 days of service of this order; and
6 3. Failure to comply with this order may result in dismissal of this action for the
7 reasons stated herein.
8 | Dated: March 11, 2022.
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>
1] EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE
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