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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KEVIN KING, 

Plaintiff, No. CIV S-04-1158 MCE KJM P

vs.

SAN JOAQUIN COUNTY 

SHERIFF’S DEPARTMENT et al.,

Defendants. ORDER

 /

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

filed under 42 U.S.C. § 1983. By order filed January 2, 2005, 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. 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. 28

U.S.C. § 1915A(b)(1),(2). 

As previously noted, a claim is legally frivolous when it lacks an arguable basis

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either in law or in fact. 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. 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. 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). 

Plaintiff’s complaint is a mix of factual allegations and case citations, which

makes the task of evaluating the claims very difficult. As background, plaintiff alleges he was a

passenger in a San Joaquin County Sheriff’s van without seatbelts for the passengers. He was

injured in an accident and denied medical care at the scene. 

Plaintiff labels certain portions of his complaint as claims, so the court will

examine these. In the first, he alleges his Eighth Amendment rights were violated by defendant

Coleman’s denying plaintiff medical care at the scene of the accident. Am. Compl. at 3. This

delay in receiving medical care has made his subsequent treatment more difficult. Id. at 4.

In Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that

inadequate medical care did not constitute cruel and unusual punishment cognizable under

section 1983 unless the mistreatment rose to the level of “deliberate indifference to serious

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medical needs.” To establish deliberate indifference, plaintiff must show that defendants knew

of and disregarded an excessive risk to his health or safety. Farmer v. Brennan, 511 U.S. 825,

837 (1994). A prison official must "both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. 

The nature of a defendant's responses must be such that the defendant purposefully ignores or

fails to respond to a prisoner's pain or possible medical need in order for "deliberate indifference"

to be established. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992), overruled in part on

other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997). 

Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere

with medical treatment, or may be demonstrated by the way in which prison officials provide

medical care. Id. at 1059-60. A serious medical need is an “injury that a reasonable doctor or

patient would find worthy of comment or treatment” or “serious or chronic pain.” Estelle, 429

U.S. at 104; McGuckin, 974 F.2d at 1059-60. 

Plaintiff’s complaint does not sufficiently plead an Eighth Amendment violation. 

The court cannot determine what injuries, if any, he suffered in the accident and how the delay

made the subsequent course of treatment more difficult. He will be given another chance to

amend this portion of his complaint.

As claim two, plaintiff alleges that defendant Coleman provided on-the-scene

medical treatment for an injured white inmate, but none for plaintiff, who is black, in violation of

his Fourteenth Amendment right to equal protection of the laws. 

To establish an equal protection claim, a plaintiff must show “defendants acted

with an intent or purpose to discriminate against the plaintiff based upon membership in a

protected class.” Barren v. Harrington, 152 F.3d 1193, 1194-96 (9th Cir. 1998). Plainitff has not

alleged defendant Coleman acted with an intent to discriminate against plaintiff; he will be given

the opportunity to amend his complaint if he is able to do so while complying with Federal Rule

of Civil Procedure 11.

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The basis of claim three is somewhat murky. Plaintiff complains that defendant

Dunn, the former sheriff of San Joaquin County, deprived plaintiff of his right to equal protection

by his failure to equip jail vans with seatbelts. 

As noted above, these factual claims do not add up to an equal protection

violation. Moreover, the failure to provide seatbelts does not rise to the level of constitutional

injury. Carrasquillo v. City of New York, 324 F.Supp.2d 428, 437-38 (S.D.N.Y. 2004). This

claim thus should not be included in any amended complaint. 

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 second amended 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. 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. 1978). 

Furthermore, vague and conclusory allegations of official participation in civil rights violations

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

In McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996), the Ninth Circuit Court

of Appeal upheld the dismissal of a complaint it found to be “argumentative, prolix, replete with

redundancy, and largely irrelevant. It consists largely of immaterial background information.” 

The court observed the Federal Rules require that a complaint consist of “simple, concise, and

direct” averments. Id. As a model of concise pleading, the court quoted the standard form

negligence complaint from the Appendix to the Federal Rules of Civil Procedure:

 1. Allegation of jurisdiction.

 2. On June 1, 1936, in a public highway, called Boylston Street, in Boston

Massachusetts, defendant negligently drove a motor vehicle against plaintiff, who

was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken, and was

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otherwise injured, was prevented from transacting his business, suffered great

pain of body and mind, and incurred expenses for medical attention and

hospitalization in the sum of one thousand dollars.

Wherefore plaintiff demands judgment against defendant in the sum of one

thousand dollars.

Id. Plaintiff’s amended complaint suffers from some of the problems outlined in McHenry,

which complicates the court’s task of screening it. Any second amended complaint must 

contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). 

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

order to make plaintiff's second 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 a second amended complaint, the

original pleading no longer serves any function in the case. Therefore, in a second amended

complaint, as in an original complaint, each claim and the involvement of each defendant must

be sufficiently alleged. 

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

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must bear the docket number assigned this case and must be labeled “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: May 20, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

king1158.14amd

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