1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT CUNNINGHAM, No. 2:23-cv-00270-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 CONDON, et al., 15 Defendants. 16 17 Plaintiff is a county jail inmate proceeding pro se. On December 12, 2023, the court 18 dismissed plaintiff’s amended complaint with leave to amend. ECF No. 12. Plaintiff has filed a 19 second amended complaint (ECF No. 13), which is before the court for screening. 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 23 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 24 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 25 relief.” Id. § 1915A(b). 26 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 27 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 28 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 1 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 3 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 4 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 5 U.S. 662, 679 (2009). 6 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 7 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 8 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 9 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 10 678. 11 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 12 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 13 content that allows the court to draw the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 15 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 16 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 17 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 18 Plaintiff alleges that he suffers from epilepsy. ECF No. 13. Defendants are two 19 Sacramento County Main Jail (“Jail”) employees (Condon and Biagi) who reviewed grievances 20 filed by plaintiff complaining that, due to his epilepsy, it was unsafe to house plaintiff on the 21 upper tier of the Jail, and two doctors at the Jail (Fadaki and Babu) who were “aware of the 22 decisions and circumstances regarding Plaintiff’s safety concerns.” Id. at 3-4. Plaintiff alleges 23 that Condon and Biagi, having been made aware of the danger posed by housing plaintiff on the 24 upper tier, failed to act to prevent him from falling on the stairs during a seizure. Id. at 3. 25 Plaintiff remains housed on the upper tier. Id. at 4. 26 The complaint states a potentially cognizable claim for relief for violation of plaintiff’s 27 rights under the Eighth Amendment against defendants Condon and Biagi pursuant to 42 U.S.C. § 28 1983 and 28 U.S.C. § 1915A(b). However, the complaint does not state facts showing that 1 Fadaki and Babu were personally involved in any action or decision concerning plaintiff’s 2 housing placement. Accordingly, plaintiff has failed to state a claim against Fadaki and Babu. 3 Plaintiff will be provided one last opportunity to state a viable claim against these defendants. 4 Leave to Amend 5 If Plaintiff chooses to file an amended complaint, he should note that any amended 6 complaint must identify as a defendant only persons who personally participated in a substantial 7 way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th 8 Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 9 participates in another’s act or omits to perform an act he is legally required to do that causes the 10 alleged deprivation). The amended complaint must contain a caption including the names of all 11 defendants. Fed. R. Civ. P. 10(a). The amended complaint should also describe, in sufficient 12 detail, how each defendant personally violated or participated in the violation of his rights. The 13 Court will not infer the identify of defendants, nor the existence of allegations that have not been 14 explicitly set forth in the amended complaint. 15 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 16 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims 17 against more than one defendant. Id. The amended complaint should include only claims that are 18 related because they concern the same event (or series of related events) or the same defendant. 19 Any amended complaint must be written or typed so that it is complete in itself without 20 reference to any earlier filed complaint, and must include the allowed claim against defendant 21 Bradley. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier filed 22 complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves 23 any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the 24 ‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) 25 (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). The amended complaint must explain 26 the relevance of any document appended to it. The Court will not infer any allegation or claim 27 based solely on the content of documents attached to the amended complaint. 28 Finally, the court notes that any amended complaint should be as concise as possible in 1 | fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 2 || procedural or factual background which has no bearing on his legal claims. The court cautions 3 | plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court’s Local Rules, 4 || or any court order may result in this action being dismissed. See Local Rule 110. 5 Conclusion 6 Accordingly, IT IS HEREBY ORDERED that: 7 1.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT CUNNINGHAM, No. 2:23-cv-00270-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 CONDON, et al., 15 Defendants. 16 17 Plaintiff is a county jail inmate proceeding pro se. On December 12, 2023, the court 18 dismissed plaintiff’s amended complaint with leave to amend. ECF No. 12. Plaintiff has filed a 19 second amended complaint (ECF No. 13), which is before the court for screening. 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 23 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 24 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 25 relief.” Id. § 1915A(b). 26 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 27 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 28 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 1 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 3 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 4 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 5 U.S. 662, 679 (2009). 6 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 7 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 8 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 9 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 10 678. 11 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 12 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 13 content that allows the court to draw the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 15 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 16 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 17 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 18 Plaintiff alleges that he suffers from epilepsy. ECF No. 13. Defendants are two 19 Sacramento County Main Jail (“Jail”) employees (Condon and Biagi) who reviewed grievances 20 filed by plaintiff complaining that, due to his epilepsy, it was unsafe to house plaintiff on the 21 upper tier of the Jail, and two doctors at the Jail (Fadaki and Babu) who were “aware of the 22 decisions and circumstances regarding Plaintiff’s safety concerns.” Id. at 3-4. Plaintiff alleges 23 that Condon and Biagi, having been made aware of the danger posed by housing plaintiff on the 24 upper tier, failed to act to prevent him from falling on the stairs during a seizure. Id. at 3. 25 Plaintiff remains housed on the upper tier. Id. at 4. 26 The complaint states a potentially cognizable claim for relief for violation of plaintiff’s 27 rights under the Eighth Amendment against defendants Condon and Biagi pursuant to 42 U.S.C. § 28 1983 and 28 U.S.C. § 1915A(b). However, the complaint does not state facts showing that 1 Fadaki and Babu were personally involved in any action or decision concerning plaintiff’s 2 housing placement. Accordingly, plaintiff has failed to state a claim against Fadaki and Babu. 3 Plaintiff will be provided one last opportunity to state a viable claim against these defendants. 4 Leave to Amend 5 If Plaintiff chooses to file an amended complaint, he should note that any amended 6 complaint must identify as a defendant only persons who personally participated in a substantial 7 way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th 8 Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 9 participates in another’s act or omits to perform an act he is legally required to do that causes the 10 alleged deprivation). The amended complaint must contain a caption including the names of all 11 defendants. Fed. R. Civ. P. 10(a). The amended complaint should also describe, in sufficient 12 detail, how each defendant personally violated or participated in the violation of his rights. The 13 Court will not infer the identify of defendants, nor the existence of allegations that have not been 14 explicitly set forth in the amended complaint. 15 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 16 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims 17 against more than one defendant. Id. The amended complaint should include only claims that are 18 related because they concern the same event (or series of related events) or the same defendant. 19 Any amended complaint must be written or typed so that it is complete in itself without 20 reference to any earlier filed complaint, and must include the allowed claim against defendant 21 Bradley. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier filed 22 complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves 23 any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the 24 ‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) 25 (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). The amended complaint must explain 26 the relevance of any document appended to it. The Court will not infer any allegation or claim 27 based solely on the content of documents attached to the amended complaint. 28 Finally, the court notes that any amended complaint should be as concise as possible in 1 | fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of 2 || procedural or factual background which has no bearing on his legal claims. The court cautions 3 | plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court’s Local Rules, 4 || or any court order may result in this action being dismissed. See Local Rule 110. 5 Conclusion 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs third amended complaint (ECF No. 13) states potentially cognizable 8 Eighth Amendment claims against defendants Condon and Biagi. 9 3. Plaintiffs claims against defendants Fadaki and Babu are dismissed with leave to 10 amend within 30 days of service of this order. Plaintiff is not obligated to amend his 11 complaint. 12 4. Within thirty days plaintiff shall return the notice below advising the court whether 13 he elects to proceed with the cognizable claims or file a third amended complaint. If the 14 former option is selected and returned, the court will enter an order directing service at 15 that time. 16 5. Failure to comply with this order may result in dismissal of this action for the 17 reasons stated herein. 18 19 | Dated: August 12, 2024 Doautin 3 Zhu Lian LAA thee CLACAM 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT CUNNINGHAM, No. 2:23-cv-00270-EFB (PC) 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 CONDON, et al., 15 Defendants. 16 17 In accordance with the court’s Screening Order, plaintiff hereby elects to: 18 19 (1) ______ proceed only with the Eighth Amendment claims identified in the Screening 20 Order against defendants Condon and Biagi. 21 22 OR 23 24 (2) _______ delay serving any defendant and file a third amended complaint. 25 26 ___________________________________ 27 Plaintiff 28 Dated: