Norden v. Vesudeva
Filing
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ORDER Dismissing 1 Complaint With Leave to Amend, signed by Magistrate Judge Gerald B. Cohn on 6/23/11. First Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ELLEN G. NORDEN,
CASE NO. 1:10-cv-01839-GBC (PC)
Plaintiff,
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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
v.
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DR. VESUDEVA,
(ECF No. 1)
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Defendant.
FIRST AMENDED COMPLAINT DUE
/ WITHIN THIRTY DAYS
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Ellen Norden (“Plaintiff”) is a state prisoner 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 October 6, 2010 and consented to Magistrate Judge jurisdiction on October 28, 2010.
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(ECF Nos. 1 & 6.) 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 receive adequate
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SUMMARY OF COMPLAINT
medical care. Plaintiff names Dr. Vesudeva as the lone Defendant.
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Plaintiff alleges as follows: Plaintiff suffers from migraine headaches, has asthma,
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an irregular heartbeat and blood regurgitation, pain in her chest, left arm, and spine,
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muscle spasms, and has had a stroke. Plaintiff states that it took one year to receive
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treatment for her migraines and over nine months to receive treatment for her asthma.
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Plaintiff states that Defendant refuses to provide treatment or allow her to see a specialist.
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Plaintiff seeks a court order ordering that she been seen by a specialist and
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monetary compensation.
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IV.
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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
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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.
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Plaintiff alleges inadequate medical care and deliberate indifference to her serious
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Eighth Amendment Claim
medical needs.
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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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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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Also, “a difference of opinion between a prisoner-patient and prison medical
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authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,
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662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must
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show that the course of treatment the doctors chose was medically unacceptable under
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the circumstances . . . and . . . that they chose this course in conscious disregard of an
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excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
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(internal citations omitted). A prisoner’s mere disagreement with diagnosis or treatment
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does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242
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(9th Cir. 1989).
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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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Plaintiff has failed to allege sufficient facts to state an Eighth Amendment deliberate
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indifference claim. Plaintiff merely states that she is in pain and has not been treated or
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that it took a long time for her to receive treatment. However, she does not demonstrate
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that the only named Defendant was aware of or deliberately indifferent to her conditions.
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In fact, other than stating that Defendant Vesudeva was deliberately indifferent toward her
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medical needs, Plaintiff does not attribute specific responsibility for any specific incident
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of deliberate indifference.
Plaintiff does not allege that the named Defendant was
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personally responsible for the denial or delay in treatment. She merely states that she
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suffered from certain ailments and did not receive treatment. She does not allege that the
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Defendant had knowledge of her ailments. She does not allege that the Defendant was
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deliberately indifferent her ailments.
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Plaintiff will be given leave to amend this claim. In her amended complaint, she
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must demonstrate knowledge of and deliberate indifference to a serious medical need.
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She must include a detailed description of the serious medical need and how Defendant
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was deliberately indifferent to it.
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B.
Personal Participation and Supervisory Liability
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Plaintiff does not attribute any action, unconstitutional or otherwise, to Vesudeva.
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Plaintiff may be arguing that Defendant Vesudeva is liable for the conduct of his/her
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subordinates as he/she was not present and, therefore, did not participate in the
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complained of conduct as currently described by Plaintiff.
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Under Section 1983, Plaintiff must demonstrate that each named Defendant
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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory
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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.
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Iqbal, 129 S.Ct. at 1949.
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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.
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at 1948. Rather, each government official, regardless of his or her title, is only liable for
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his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,
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through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at
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1948-49.
“Government officials may not be held liable for the
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When examining the issue of supervisor liability, it is clear that the supervisors are
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not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,
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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.
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2004). In order to establish liability against a supervisor, a plaintiff must allege facts
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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient
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causal connection between the supervisor’s wrongful conduct and the constitutional
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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal
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connection may be shown by evidence that the supervisor implemented a policy so
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deficient that the policy itself is a repudiation of constitutional rights.
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F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general
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responsibility for supervising the operations of a prison is insufficient to establish personal
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involvement. Id. (internal quotations omitted).
Wesley, 333
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Supervisor liability under Section 1983 is a form of direct liability. Munoz v.
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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must
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show that Defendant breached a duty to him which was the proximate cause of his injury.
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Id. “‘The requisite causal connection can be established . . . by setting in motion a series
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of acts by others which the actor knows or reasonably should know would cause others to
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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th
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Cir. 1978)).
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indifference, a plaintiff may state a claim for supervisory liability based upon the
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supervisor’s knowledge of and acquiescence in unconstitutional conduct by others.” Star
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v. Baca, 633 F.3d 1191, 1196 (9th Cir. 2011).
However “where the applicable constitutional standard is deliberate
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Plaintiff has not alleged facts demonstrating that the named Defendant personally
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acted to violate her rights. Plaintiff must specifically link each Defendant to a violation of
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her rights. Plaintiff shall be given the opportunity to file an amended complaint curing the
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deficiencies described by the Court in this order.
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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 her Amended Complaint, Plaintiff
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must demonstrate that the alleged incident or incidents resulted in a deprivation of her
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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 her rights. Jones, 297 F.3d at 934.
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Plaintiff should note that although she 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;
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refer to the case number 1:10-cv-1839-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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Plaintiff shall caption the amended complaint “First Amended Complaint” and
IT IS SO ORDERED.
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Dated:
1j0bbc
June 23, 2011
UNITED STATES MAGISTRATE JUDGE
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