# (PC) Puckett v. Heath > District Court, E.D. California · November 15, 2022 URL: https://www.frixlaw.com/law-library/cases/10048584 ## Case - **Court:** District Court, E.D. California - **Decided:** November 15, 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/10048584 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DURRELL ANTHONY PUCKETT, No. 2:22-cv-00476-CKD P 12 Plaintiff, 13 v. ORDER 14 HEATH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local 19 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 On May 16, 2022, the court screened plaintiff’s complaint and dismissed it with leave to 21 amend based on his failure to sign the complaint. ECF No. 7. Plaintiff’s first amended complaint 22 is now before the court for screening. ECF No. 10. 23 As plaintiff was previously advised, the court is required to screen complaints brought by 24 prisoners seeking relief against a governmental entity or officer or employee of a governmental 25 entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the 26 prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 27 which relief may be granted, or that seek monetary relief from a defendant who is immune from 28 such relief. 28 U.S.C. § 1915A(b)(1), (2). 1 I. Allegations in the First Amended Complaint 2 At all times relevant to the allegations in the amended complaint, plaintiff was an inmate 3 at the California Medical Facility (“CMF”). Defendants are various correctional officers and 4 medical staff employed at the CMF. 5 Plaintiff alleges that excessive force was used against him by various correctional officers 6 on two separate dates while he was both restrained and compliant with all orders. Plaintiff also 7 asserts that R.N. Gonzalez failed to provide treatment for his injuries even though she saw blood 8 on his face following the February 18, 2022 use of force. A John Doe Sergeant and Jane Doe 9 Licensed Vocational Nurse failed to intervene to protect him during the April 9, 2022 incident.1 10 II. Legal Standards 11 The civil rights statute requires that there be an actual connection or link between the 12 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 13 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 14 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 15 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 16 in another's affirmative acts or omits to perform an act which he is legally required to do that 17 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 18 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 19 link each named defendant with some affirmative act or omission that demonstrates a violation of 20 plaintiff's federal rights. 21 III. Analysis 22 After conducting the required screening, the court finds that plaintiff may proceed on the 23 1Although the use of Doe defendants is acceptable to withstand dismissal of a complaint at the 24 initial screening stage, they cannot be served with process until identified by their real names. See Mosier v. California Dept. of Corrections & Rehabilitation, 2012 WL 2577524, at *3 (E.D. 25 Cal. July 3, 2012); Robinett v. Correctional Training Facility, 2010 WL 2867696, at *4 (N.D. Cal. July 20, 2010). Therefore, service will not be ordered on either of these Eighth Amendment 26 failure to protect claims until plaintiff has identified the actual identities of these Doe defendants 27 and amended his complaint to substitute the defendants' actual names. The burden is on plaintiff to promptly discover the full names of these Doe defendants. Robinett, 2010 WL 2867696 at *4. 28 1 Eighth Amendment excessive force claims against defendants Heath, H. Williams, Gorsi, Marfil, 2 Easton, Dunlap, Lockwood, and Martinez. Plaintiff has also stated an Eighth Amendment 3 deliberate indifference claim against defendant R. Gonzalez. However, the first amended 4 complaint does not link defendant Clark to any of the alleged constitutional violations. Plaintiff 5 has the option of proceeding immediately on the Eighth Amendment claims against all the named 6 defendants except defendant Clark, or he may attempt to cure the defects against defendant Clark 7 by filing a second amended complaint. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 8 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any 9 deficiency in their complaints). If plaintiff chooses to proceed on the Eighth Amendment claims 10 found cognizable in this screening order, the court will construe this as a request to voluntarily 11 dismiss defendant Clark pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. 12 Plaintiff is granted leave to file a second amended complaint should he decide that he does not 13 want to immediately proceed on the Eighth Amendment claims found cognizable in this screening 14 order. 15 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 16 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 17 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 18 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 19 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 20 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 21 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 22 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 24 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 25 complaint be complete in itself without reference to any prior pleading. This is because, as a 26 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 27 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 28 longer serves any function in the case. Therefore, in an amended complaint, as in an original 1 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 2 I. Plain Language Summary for Pro Se Party 3 The following information is meant to explain this order in plain English and is not 4 intended as legal advice. 5 Some of the allegations in the amended complaint state claims for relief against the 6 defendants, and some do not. You must decide if you want to (1) proceed immediately on the 7 Eighth Amendment excessive force claims against defendants Heath, H. Williams, Gorsi, Marfil, 8 Easton, Dunlap, Lockwood, and Martinez as well as the Eighth Amendment deliberate 9 indifference claim against defendant R. Gonzalez; or, (2) amend the complaint to fix the problems 10 identified in this order with respect to defendant Clark. Once you decide, you must complete the 11 attached Notice of Election form by checking only one box and returning it to the court. 12 Once the court receives the Notice of Election, it will issue an order telling you what you 13 need to do next. If you do not return this Notice, the court will construe this failure as consent to 14 dismiss defendant Clark and will order service of the complaint only on the claims found 15 cognizable in this screening order. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff has the option to proceed immediately on the Eighth Amendment excessive 18 force claims against defendants Heath, H. Williams, Gorsi, Marfil, Easton, Dunlap, Lockwood, 19 and Martinez as well as the Eighth Amendment deliberate indifference claim against defendant R. 20 Gonzalez. 21 2. Within 21 days from the date of this order, plaintiff shall complete and return the 22 attached Notice of Election form notifying the court whether he wants to proceed on the screened 23 amended complaint or whether he wants time to file a second amended complaint to fix the 24 deficiencies with respect to defendant Clark. 25 ///// 26 ///// 27 ///// 28 ///// 1 3. If plaintiff fails to return the attached Notice of Election within the time provided, the 2 || court will construe this failure as consent to dismiss defendant Clark and proceed only on the 3 || cognizable claims identified in this screening order. 4 || Dated: November 15, 2022 Card Kt | (£4 (g— 5 CAROLYN K DELANEY? 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 || 12/puck0476.option.docx 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DURRELL ANTHONY PUCKETT, 11 No. 2:22-cv-00476-CKD Plaintiff, 12 v. NOTICE OF ELECTION 13 HEATH, et al., 14 Defendants. 15 16 Check only one option: 17 ______ Plaintiff wants to proceed immediately on the Eighth Amendment excessive force claims 18 against defendants Heath, H. Williams, Gorsi, Marfil, Easton, Dunlap, Lockwood, and Martinez as well as the Eighth Amendment deliberate indifference claim against defendant R. Gonzalez. 19 Plaintiff voluntarily dismisses defendant Clark. 20 _____ Plaintiff wants time to file a second amended complaint. 21 22 DATED: 23 24 25 ____________________ Plaintiff 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10048584. Public record. Not legal advice.