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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MANUEL AYALA,

Plaintiff, No. CIV S-04-0903 LKK CMK P

vs.

CALIFORNIA DEPARTMENT

 OF CORRECTIONS, et al., 

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

filed pursuant to 42 U.S.C. § 1983. By order filed December 23, 2004, plaintiff's complaint was

dismissed with leave to file an amended complaint. Plaintiff has now filed an amended

complaint.

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may

be granted, or that seek monetary relief from a defendant who is immune from such relief. See

28 U.S.C. § 1915A(b)(1),(2). 

///

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A claim is legally frivolous when it lacks an arguable basis either in law or in

fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,

1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based

on an indisputably meritless legal theory or where the factual contentions are clearly baseless. 

See Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d

639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a

claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

complaint under this standard, the court must accept as true the allegations of the complaint in

question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 

The court dismissed plaintiff’s previous complaint for his failure to allege that the

defendants’ were deliberately indifferent to his serious medical needs. See Farmer v. Brennan,

511 U.S. 825, 834 (1994). The plaintiff is reminded that deliberate indifference may be shown

when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be

shown by the way in which prison officials provide medical care. See Hutchinson v. United

States, 838 F.2d 390, 393-394 (9th Cir. 1988). Before it can be said that a prisoner’s civil rights

have been abridged with regard to medical care, however, “the indifference to his medical needs

must be substantial. Mere “indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support

this cause of action.” Broughton v. Cutter laboratories, 622 F.2d 458, 460 (9 Cir. 1980). th

Deliberate indifference is “a state of mind more blameworthy than negligence” and “requires

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more than ordinary lack of due care for the prisoner’s interest or safety.” Farmer, 511 U.S. at

835.

Delays in providing medical care may manifest deliberate indifference. See

Estelle v. Gamble, 429 U.S.97, 104-105 (1976). To establish a claim of deliberate indifference

arising from delay, a plaintiff must allege that the delay was harmful. See Berry v. Bunnell, 39

F.3d 1056, 1057 (9th Cir. 1994) (per curiam); McGuckin v. Smith, 974 F.2d. 1050, 1059 (9th

Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t,

865 F.2d 198, 200 (9th Cir. 1989); Shapely v. Nevada Bd. Of State Prison Comm’rs, 766 F.2d

404, 407 (9th Cir. 1985) (per curiam). Here, the plaintiff did not make any such allegations. 

Further, mere differences of opinion between a prisoner and prison medical staff

as to proper medical care do not give rise to a § 1983 claim. See Jackson v. McIntosh, 90 F.3d

330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v.

Oregon, 662 F.2d 1337, 1334 (9th Cir. 1981).

In addition, plaintiff has named the California Department of Corrections (CDC)

and the California Medical Facility (CMF), state agencies, as defendants in this action. Plaintiff

should be aware that the Eleventh Amendment serves as a jurisdictional bar to suits brought by

private parties against a state or state agency unless the state or the agency consents to such suit. 

See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978)( per curiam);

Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982).

If plaintiff chooses to file a second amended complaint, plaintiff must

demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's

constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint

must allege in specific terms how each named defendant is involved. There can be no liability

under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

defendant's actions and the claimed deprivation. See Rizzo v. Goode, 423 U.S. 362 (1976); May

v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Furthermore, vague and conclusory allegations of official participation in civil rights

violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in

order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an

amended complaint be complete in itself without reference to any prior pleading. This is

because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

original complaint, each claim and the involvement of each defendant must be sufficiently

alleged. The plaintiff’s amended complaint shall be no longer than 20 pages.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's amended complaint is dismissed; and

2. Plaintiff is granted thirty days from the date of service of this order to file a

second amended complaint that complies with the requirements of the Civil Rights Act, the

Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended

complaint must bear the docket number assigned this case and must be labeled “Second

Amended Complaint”; plaintiff must file an original and two copies of the second amended

complaint; failure to file a second amended complaint in accordance with this order will result in

a recommendation that this action be dismissed.

DATED: September 6, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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