United States District Court, D. Oregon
ORDER TO DISMISS
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
an inmate at the Columbia River Correctional Institution, has
filed an Amended Complaint in this 42 U.S.C. § 1983
prisoner civil rights case. In a separate Order, the Court
has granted Plaintiff leave to proceed in forma
pauperis. However, for the reasons set forth below,
Plaintiff's Amended Complaint is dismissed for failure to
state a claim upon which relief may be granted. See
28 U.S.C. § 1915(e)(2).
initially filed this action as a 28 U.S.C. § 2241 habeas
corpus case. Because he challenged the conditions of his
confinement by way of a medical claim, the Court construed
the action as a 42 U.S.C. § 1983 civil rights case.
Petitioner named a single defendant, Defendant Angelozzi, but
failed to identify how he personally participated in the
deprivation of a federal constitutional right. Accordingly,
the Court dismissed the Complaint and allowed Plaintiff 30
days to file an amended pleading curing this
timely file his Amended Complaint wherein he alleges that he
seriously injured his upper back and neck while exercising at
the Two Rivers Correctional Institution, and that officials
at that prison as well as his present prison have not
appropriately treated his condition. He asks the Court to
order "CRCI Medical" to provide him with an MRI or
CT Scan and, if needed, immediate surgery for his condition.
to 28 U.S.C. § l9l5A(a), the Court is required to screen
prisoner complaints seeking relief against a governmental
entity, officer, or employee and must dismiss a complaint if
the action is frivolous, malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §§
1915(e)(2)(B) and l9l5A(b). In order to state a claim,
Plaintiff's Complaint must contain sufficient factual
matter which, when accepted as true, gives rise to a
plausible inference that defendants violated plaintiff's
constitutional rights. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550
U.S. 554, 556-57 (2007). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at
for failure to state a claim is proper if it appears beyond
doubt that Plaintiff can prove no set of facts in support of
his claims that would entitle him to relief. Ortez v.
Washington County, 88 F.3d 804, 806 (9th Cir. 1996);
Cervantes v. City of San Diego, 5 F.3d 1273, 1274
(9th Cir. 1993). Because Plaintiff is proceeding pro
se, the Court construes his pleadings liberally and
affords him the benefit of any doubt. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Ortez, 88 F.3d
Court construes the Complaint to state an Eighth Amendment
medical claim that Defendants have been deliberately
indifferent to his serious medical needs. However, much like
his original Complaint where Plaintiff failed to identify how
Defendant Angelozzi personally participated in the
deprivation of needed medical care, Plaintiff once again
fails to identify how each Defendant he names in his Amended
Complaint personally participated in the Eighth Amendment
violation he alleges.
Court previously advised Plaintiff, a party wishing to bring
a cause of action pursuant to 42 U.S.C. § 1983 must
demonstrate compliance with the following factors: (1) a
violation of rights protected by the Constitution or created
by federal statute; (2) proximately caused; (3) by conduct of
a person; (4) acting under color of state law. Crumpton
v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). It is
incumbent upon a litigant to "plead that each . . .
defendant, through the official's own individual actions,
has violated the Constitution." Iqbal, 556 U.S.
at 676; see also Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989) ("Liability under section 1983 arises
only upon a showing of personal participation by the
defendant" in the alleged constitutional deprivation).
Where Plaintiff has not done so, his Amended Complaint is
dismissed for failure to state a claim. The Court allows
Plaintiff one final opportunity to state a valid claim for
on the foregoing, IT IS ORDERED that Plaintiff's Amended
Complaint (#9) is DISMISSED for failure to state a claim.
Should Plaintiff wish to proceed with this action, he must
file a second amended complaint curing the deficiencies noted
above within 30 days of the date of this Order. Plaintiff is
advised that failure to do so shall result in the dismissal
of this proceeding, with prejudice. In lieu ...