# (PC)Ellis v. Brown > District Court, E.D. California · March 11, 2022 URL: https://www.frixlaw.com/law-library/cases/10043168 ## Case - **Court:** District Court, E.D. California - **Decided:** March 11, 2022 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10043168 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN F. ELLIS, No. 2:21-cv-1635-WBS-EFB P 12 Plaintiff, 13 v. ORDER 14 R. BROWN, et al., 15 Defendants. 16 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 25 ///// 26 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. 26 ///// 27 ///// 28 ///// 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. 9 > 1] EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10043168. Public record. Not legal advice.