(PC) Torlucci v. Meitten et al, No. 2:2014cv01554 - Document 11 (E.D. Cal. 2015)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/13/15 ORDERING that the clerk of the court randomly assign a United States District Judge to this action. U.S. District Judge Morrison C. England Jr. randomly assigned to this action. Also, RECOMMENDING that this action be dismissed for failure to state a cognizable claim for relief. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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(PC) Torlucci v. Meitten et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARTHUR TORLUCCI, 12 13 14 15 No. 2:14-cv-1554 DAD P Plaintiff, v. ORDER AND DR. HAMKAR et al., FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983. Pending before the court is plaintiff’s amended complaint. 19 SCREENING REQUIREMENT 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 22 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 23 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 24 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 25 U.S.C. § 1915A(b)(1) & (2). 26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 1 Dockets.Justia.com 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 3 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 4 Cir. 1989); Franklin, 745 F.2d at 1227. 5 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 6 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 7 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 8 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 9 However, in order to survive dismissal for failure to state a claim a complaint must contain more 10 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 11 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 12 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 13 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 14 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 15 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 16 The Civil Rights Act under which this action was filed provides as follows: 17 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. 18 19 20 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 21 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 22 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 23 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 24 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 25 omits to perform an act which he is legally required to do that causes the deprivation of which 26 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 27 28 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant 2 1 holds a supervisorial position, the causal link between him and the claimed constitutional 2 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 3 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 4 concerning the involvement of official personnel in civil rights violations are not sufficient. See 5 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 6 DISCUSSION 7 Plaintiff’s amended complaint is more than 100 pages long and in it he names more than a 8 dozen defendants. In short, the amended complaint is disorganized and difficult to decipher in 9 every respect. It consists of a hodge-podge of unrelated allegations, some illegible, interspersed 10 with citations to legal authority and copies of plaintiff’s prison file. This court previously advised 11 plaintiff that if he wished to proceed in this cause of action, he needed to file an amended 12 complaint and allege in specific terms how each named defendant was involved in the deprivation 13 of plaintiff’s rights. The court further advised plaintiff that, insofar as he wished to proceed on a 14 claim for inadequate medical care, he needed to allege facts demonstrating how each defendant’s 15 actions rose to the level of “deliberate indifference.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). 16 Plaintiff has failed to follow these directives in his amended complaint, which fails to state any 17 cognizable claims for relief as far as the undersigned can decipher it. Accordingly, the amended 18 complaint should be dismissed. 19 Plaintiff has been provided an opportunity, with guidance, to amend his original complaint 20 to attempt to state a cognizable claim. He has failed to do so. Where, as here, it is clear that 21 granting plaintiff further leave to amend would be futile, the court will recommend that this 22 action be dismissed. See Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 2002) (there 23 is no need to prolong the litigation by permitting further amendment where the “basic flaw” in the 24 underlying facts as alleged cannot be cured by amendment); Lipton v. Pathogenesis Corp., 284 25 F.3d 1027, 1039 (9th Cir. 2002) (“Because any amendment would be futile, there was no need to 26 prolong the litigation by permitting further amendment.”). 27 ///// 28 ///// 3 1 2 3 4 5 CONCLUSION IT IS HEREBY ORDERED that the Clerk is directed to randomly assign a United States District Judge to this action. IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a cognizable claim for relief. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, plaintiff may file written objections 9 with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 11 failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: October 13, 2015 14 15 16 17 18 DAD:9 torl1554.56 19 20 21 22 23 24 25 26 27 28 4
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