Reed v. Kang, et al.
Filing
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ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; First Amended Complaint Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 6/9/2011. First Amended Complaint due by 7/14/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CAROL Y. REED,
CASE NO. 1:10-cv-01337-GBC (PC)
Plaintiff,
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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
v.
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H. KANG, Doctor,
(ECF No. 1)
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Defendant.
FIRST AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS
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/
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Carol Y. Reed (“Plaintiff”) is a state prison proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action
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on July 26, 2010 and consented to Magistrate Judge jurisdiction on August 16, 2010. (ECF
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Nos. 1 & 5.) No other parties have appeared.
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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth
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below, the Court finds that Plaintiff has failed to state any claims upon which relief may be
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granted.
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II.
SCREENING REQUIREMENTS
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.
Plaintiff alleges violations of her Eighth Amendment right to adequate medical care.
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SUMMARY OF COMPLAINT
Plaintiff names H. Kang, Doctor, as the only Defendant.
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Plaintiff alleges the following: Plaintiff was injected with an overdose of a steroid by
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Defendant Kang. The amount of steroid injected was three times what a person should
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receive in a year. Plaintiff did not consent to the injection. Plaintiff states that the overdose
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caused debilitating damage to her left elbow including abnormal bone growth, decreased
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muscle mass, skin discoloration, and finger numbness.
Plaintiff seeks monetary damages.
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IV.
ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.
Medical Claim
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Plaintiff asserts that Defendant denied her adequate medical care.
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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an
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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439
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F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The
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two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical
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need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further
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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s
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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting
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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,
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WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations
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omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a
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prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439
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F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of
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the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the
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named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .
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. .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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The objective component of deliberate indifference requires the showing of a
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serious medical need. “A ‘serious’ medical need exists if the failure to treat a prisoner’s
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condition could result in further significant injury or the ‘unnecessary and wanton infliction
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of pain’.” McGuckin, 974 F.2d at 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104);
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see also Jett, 439 F.3d at 1096. “This is true whether the indifference is manifested by
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prison doctors in their response to the prisoner’s needs or by prison guards in intentionally
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denying or delaying access to medical care or intentionally interfering with treatment once
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prescribed.” Estelle, 429 U.S. at 104-105. The objective element requires proof that the
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prisoner’s serious medical needs were not timely and properly treated.
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The subjective component of deliberate indifference considers the nature of the
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defendant’s response to the serious medical need and whether the defendant had a
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culpable mental state, which is “‘deliberate indifference’ to a substantial risk of serious
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harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (quoting Farmer, 511 U.S. at
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835). “[T]he official must both be aware of the facts from which the inference could be
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drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
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Farmer, 511 U.S. at 837. “[T]he official’s conduct must have been ‘wanton,’ which turns
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not upon its effect on the prisoner, but rather, upon the constraints facing the official.”
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Frost, 152 F.3d at 1128 (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). “This
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second prong--defendant’s response to the need was deliberately indifferent--is satisfied
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by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible
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medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing
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McGuckin, 974 F.2d at 1060). “A prisoner need not show his harm was substantial;
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however, such would provide additional support for the inmate’s claim that the defendant
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was deliberately indifferent to his needs.” Id. Indications of a serious medical need include
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“[t]he existence of an injury that a reasonable doctor or patient would find important and
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worthy of comment or treatment; the presence of a medical condition that significantly
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affects an individual’s daily activities; or the existence of chronic and substantial pain.”
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McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th
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Cir. 1990)).
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If the claim alleges mere delay of treatment, the inmate must establish that the delay
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resulted in some harm. McGuckin, 974 F .2d at 1060 (citing Shapley v. Nevada Board of
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State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.1985) (per curiam)). The delay need not
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cause permanent injury. McGuckin, 974 F.2d at 1060; see also Hudson v. McMillian, 503
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U.S. 1, 10 (1992). Unnecessary infliction of pain is sufficient to satisfy this requirement.
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Id.
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In applying this standard, the Ninth Circuit has held that before it can be said that
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a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this
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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)
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(citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in
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diagnosing or treating a medical condition does not state a valid claim of medical
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mistreatment under the Eighth Amendment. Medical malpractice does not become a
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constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;
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see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974
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F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even gross negligence
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is insufficient to establish deliberate indifference to serious medical needs. See Wood v.
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Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
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Plaintiff states that Defendant Kang injected her with an overdose of a steroid which
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she did not consent to. Plaintiff’s allegations against Defendant Kang appear to be nothing
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more than mere negligence, or perhaps medical malpractice, neither of which will not
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support an Eighth Amendment claim as noted above.
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Therefore, as currently pleaded, Plaintiff’s Eighth Amendment claim fails. Plaintiff
will be given one additional opportunity to amend this claim.
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B.
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It appears that Plaintiff may be attempting to state a medical malpractice claim
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Medical Malpractice
under state law.
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“To the extent that the violation of a state law amounts to the deprivation of a
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state-created interest that reaches beyond that guaranteed by the federal Constitution,
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Section 1983 offers no redress.” Id. However, pursuant to 28 U.S.C. § 1367(a), in any civil
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action in which the district court has original jurisdiction, the district court “shall have
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supplemental jurisdiction over all other claims in the action within such original jurisdiction
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that they form part of the same case or controversy under Article III.” “[O]nce judicial
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power exists under § 1367(a), retention of supplemental jurisdiction over state law claims
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under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir.
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1997).
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To establish medical negligence (malpractice), a plaintiff must state (and
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subsequently prove) all of the following: (1) that the defendant was negligent; (2) that the
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plaintiff was harmed; and (3) that the defendant’s negligence was a substantial factor in
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causing the plaintiff’s harm. Ladd v. County of San Mateo, 12 Cal.4th 913, 917 (1996);
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Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 673 (1993); Restatement Second
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of Torts, section 328A; and Judicial Council Of California Civil Jury Instruction 400,
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Summer 2008 Supplement Instruction.
Plaintiff must also demonstrate compliance with the California Tort Claims Act.
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Under the California Tort Claims Act (“CTCA”), a plaintiff may not maintain an action for
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damages against a public employee unless he has presented a written claim to the state
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Victim Compensation and Government Claims Board within six months of accrual of the
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action. See Cal. Gov’t Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v. California Pub.
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Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995).
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If, upon amendment of her complaint, Plaintiff again fails to state a cognizable
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federal claim, this Court will not exercise supplemental jurisdiction over any state law
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claims that Plaintiff alleges. If there are any state law claims, they will be dismissed
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(without prejudice) along with the rest of the action.
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V.
CONCLUSION AND ORDER
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The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon
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which relief may be granted. The Court will provide Plaintiff time to file an amended
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complaint to address the potentially correctable deficiencies noted above. See Noll v.
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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must
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demonstrate that the alleged incident or incidents resulted in a deprivation of his
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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual
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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally
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participated in the deprivation of his rights. Jones, 297 F.3d at 934.
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the
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amended complaint on claims and defendants discussed herein.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint
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be complete in itself without reference to any prior pleading. As a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,
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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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The amended complaint should be clearly and boldly titled “First Amended Complaint,”
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refer to the appropriate case number, and be an original signed under penalty of perjury.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file
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an amended complaint within thirty (30) days from the date of service of this
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order;
2.
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Plaintiff shall caption the amended complaint “First Amended Complaint” and
refer to the case number 1:10-cv-1337-GBC (PC); and
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3.
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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.
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IT IS SO ORDERED.
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Dated:
1j0bbc
June 9, 2011
UNITED STATES MAGISTRATE JUDGE
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