DEBORAH BARNES, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983. Plaintiff alleges deliberate indifference to his medical needs in violation of the Eighth Amendment based on medical care he received in December 2013 at the California Health Care Facility ("CHCF"). Before the court are plaintiff's "Motion for a Rand Warning" and his second amended complaint for screening. For the reasons set forth below, the court will deny the motion as moot and dismiss the second amended complaint with leave to amend.
On screening, plaintiff's first two complaints were dismissed for failure to state a cognizable claim under § 1983 and plaintiff was given leave to file amended complaints. (Orders filed Nov. 18, 2015 and Mar. 11, 2016 (ECF Nos. 12 and 19).) On August 11, 2016, plaintiff filed a second amended complaint. (ECF No. 32.) Three days later, on August 14, 2016, attorney Timothy McCandless file a third amended complaint on plaintiff's behalf. (ECF No. 33.)
In a filing dated November 9, 2016 and entitled "Motion for `Rand Warning,'" plaintiff stated that he did not authorize McCandless to file a complaint on his behalf and requested an investigation into "this fraud." (ECF No. 36.) The court ordered McCandless to explain why he entered an appearance on plaintiff's behalf. (ECF No. 39.) McCandless filed a declaration on March 22, 2017. (ECF No. 41.) On April 12, plaintiff filed a statement that he had no objection to McCandless's representation. To clarify the record, on May 26, the court ordered McCandless to file a "Substitution of Attorneys" pursuant to Local Rule 182(g) within thirty days. McCandless and plaintiff were advised that if a Substitution of Attorneys was not filed, the court would assume plaintiff continues in this action in pro per and this case would proceed on the second amended complaint filed by plaintiff on August 11, 2016. (ECF No. 45.)
Thirty days have passed and neither a Substitution of Attorneys nor any other response to the court's May 26 order has been filed. Accordingly, this case proceeds on plaintiff's second amended complaint filed August 11, 2016. (ECF No. 32.)
As described above, in this filing, plaintiff objected to McCandless's appearance on his behalf and requested an investigation by the attorney general. (ECF No. 36.) Since then, plaintiff has explained that he has no objection to McCandless's representation. (
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'"
The Civil Rights Act under which this action was filed provides as follows:
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff.
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 holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged.
In his second amended complaint ("SAC") filed August 11, 2016, plaintiff identifies the following defendants, all employed at CHCF: (1) Warden Brian Duffy; (2) Dr. M. Shehata; (3) Dr. H. Nguyen; (4) R.N. A. Prasad; and (5) R.N. O. Ngan. (SAC (ECF No. 32) at 3-4.) Plaintiff states that after he "first started bleeding," it took "medical staff" two days to get an "emergency unit" to the facility. He then states that defendants "surgically inappropriately tore a hole in my bladder damaging my prostatic urethra, and male reproductive organs." Plaintiff also states that defendants, particularly Dr. Nguyen who apparently performed the surgery, acted negligently as well as with deliberate indifference. Plaintiff seeks compensatory and punitive damages.
Plaintiff has been advised twice previously that to establish a claim for deliberate indifference under the Eighth Amendment he must allege facts showing the following: (1) just how each defendant was involved in his medical care; (2) why the care was inadequate; (3) how each defendant's actions, or inactions, demonstrate that they were deliberately indifferent to plaintiff's medical needs; and (4) what injury plaintiff suffered as a result of the inadequate medical care. (
The court finds plaintiff's SAC fails to state a cognizable § 1983 claim against any defendant. First, with the exception of defendant Nguyen, plaintiff does not explain what any defendant did or did not do. Plaintiff must specifically identify
The court appreciates that plaintiff is attempting to state his claims in short and plain statements. However, plaintiff's SAC is not sufficiently specific. Plaintiff will be given one more opportunity to amend his complaint to attempt to state claims. The court reiterates that plaintiff must describe
For the foregoing reasons, IT IS HEREBY ORDERED as follows: