# (PC) Hill v. CDCR Contract Physician/Surgeon > District Court, E.D. California · July 27, 2023 URL: https://www.frixlaw.com/law-library/cases/10054446 ## Case - **Court:** District Court, E.D. California - **Decided:** July 27, 2023 - **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/10054446 ## Opinion text 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 D’VAUGHN CORTEZ HILL, No. 2:23-CV-1313-DMC-P 12 Plaintiff, 13 v. ORDER 14 CDCR CONTRACT PHYSICIAN/ SURGEON, et al., 15 Defendants. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 23 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 24 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 25 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 26 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 27 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 28 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 1 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 2 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 3 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 4 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 5 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 6 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 7 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 8 required by law when the allegations are vague and conclusory. 9 Plaintiff names the following as defendants: (1) “CDCR Contract Physician/ 10 Surgeon”; (2) Dr. Donback; and (3) Dr. Jeu. See ECF No. 1, pg. 1. It is not clear whether 11 “CDCR Contract Physician/Surgeon” refers to Dr. Donback, Dr. Jeu, or some third unnamed 12 individual. Plaintiff claims that a surgery performed on his pinky finger was “botched.” See id. 13 at 2-3. Plaintiff does not refer to any of the named defendants in his statement of facts. 14 As currently pleaded, Plaintiff’s complaint is insufficient to sustain a claim against 15 either of the two named defendants – Drs. Donback or Jeu. To state a claim under 42 U.S.C. § 16 1983, the plaintiff must allege an actual connection or link between the actions of the named 17 defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 18 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of 19 a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in 20 another's affirmative acts, or omits to perform an act which he is legally required to do that causes 21 the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 22 1978). Vague and conclusory allegations concerning the involvement of official personnel in 23 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 24 Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant’s 25 causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th 26 Cir. 1988). 27 / / / 28 / / / 1 Here, Plaintiff does not link either named defendant to the allegedly botched pinky 2 finger surgery. Plaintiff will be provided leave to amend to explain how the named defendants 3 caused a constitutional violation. In amending the complaint, Plaintiff should identify the 4 “CDCR Contract Physician/Surgeon.” 5 Because it is possible that the deficiencies identified in this order may be cured by 6 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 7 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 8 informed that, as a general rule, an amended complaint supersedes the original complaint. See 9 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 10 amend, all claims alleged in the original complaint which are not alleged in the amended 11 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 12 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 13 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 14 complete in itself without reference to any prior pleading. See id. 15 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 16 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 17 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 18 each named defendant is involved, and must set forth some affirmative link or connection 19 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 20 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 21 Finally, Plaintiff is warned that failure to file an amended complaint within the 22 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 23 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 24 with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 25 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 26 / / / 27 / / / 28 / / / ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs original complaint is dismissed with leave to amend; and 3 2. Plaintiff shall file a first amended complaint within 30 days of the date of 4 | service of this order. 5 6 | Dated: July 27, 2023 Svc 7 DENNIS M. COTA 8 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 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/10054446. Public record. Not legal advice.