Tran v. Junious et al

Filing 12

ORDER DISMISSING (First Amended Complaint) and GRANTING Plaintiff Leave to File Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 01/28/2015. Second Amended Complaint : (30-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 1:14 cv 01320 GSA PC

BINH TRAN,

vs.

M. JUNIOUS, et al.,
Defendants

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ORDER DISMISSING FIRST AMENDED
COMPLAINT AND GRANTING PLAINTIFF
LEAVE TO FILE A SECOND AMENDED
COMPLAINT

AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction

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pursuant to 28 U.S.C. § 636(c).1
The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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Plaintiff filed a consent to proceed before a magistrate judge on September 8, 2014 (ECF No. 5).
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii).

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“Rule 8(a)‟s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R.

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Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff‟s

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claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the

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liberal pleading standard . . . applies only to a plaintiff‟s factual allegations.” Neitze v. Williams,

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490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not

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supply essential elements of the claim that were not initially pled.” Bruns v. Nat‟l Credit Union

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Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268

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(9th Cir. 1982)).

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II.

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Plaintiff’s Claims
This action proceeds on the October 8, 2014, first amended complaint. Plaintiff is an

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inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at

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High Desert State Prison in Susanville. In the original complaint, Plaintiff named as Defendants

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individuals employed by the CDCR at North Kern State Prison. Plaintiff„s allegations stemmed

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from conduct that occurred while Plaintiff was housed at North Kern. In the first amended

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complaint, Plaintiff does not include the allegations of the original complaint. The first amended

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complaint sets forth conclusory allegations regarding inadequate health care and vague

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references to Plaintiff‟s medical condition.

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Plaintiff also indicates that “venue is appropriate in this court because both court is in fact

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govern and reside in this district and substantial amount of acts and omissions giving rise to this

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lawsuit in and did occur in this district. A substantial portion of the events giving rise to the

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additional claims alleged in this complain arose in High Desert State Prison in Lassen County,

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California.” Plaintiff contends that venue is proper because Lassen County is in the Eastern

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District of California. Plaintiff is advised that any claims arising out of conduct of officials at
High Desert State Prison should be brought in a separate action and filed in the Sacramento
Division of the Eastern District of California. Any claims regarding conduct at North Kern State
Prison should be brought in this action. However, the original complaint in this action no longer
controls, as Plaintiff filed the first amended complaint that is now before the Court. Plaintiff is
advised that once he files an amended complaint, the Court will no longer consider any
allegations in the original complaint. Plaintiff must set forth all of his allegations in any
amended complaint.

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Plaintiff need not, however, set forth legal arguments in support of his claims. In order to
hold an individual defendant liable, Plaintiff must name the individual defendant, describe where
that defendant is employed and in what capacity, and explain how that defendant acted under

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color of state law. Plaintiff should state clearly, in his or her own words, what happened.

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Plaintiff must describe what each defendant, by name, did to violate the particular right described

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by Plaintiff. Plaintiff has failed to do so here. The Court will therefore grant Plaintiff leave to

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file a second amended complaint regarding conduct that occurred at North Kern State Prison.

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III.

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Conclusion and Order
The Court has screened Plaintiff‟s first amended complaint and finds that it does not state

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any claims upon which relief may be granted under section 1983. The Court will provide

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Plaintiff with the opportunity to file a second amended complaint curing the deficiencies

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identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff is cautioned that he may not change the nature of this suit by adding new, unrelated

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claims in his amended complaint. George, 507 F.3d at 607 (no “buckshot” complaints).

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Plaintiff‟s second amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state

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what each named defendant did that led to the deprivation of Plaintiff‟s constitutional or other

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federal rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations

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must be [sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 554 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,
Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565,

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567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an

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original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d

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at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord
Forsyth, 114 F.3d at 1474.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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to state a claim;
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The Clerk‟s Office shall send to Plaintiff a complaint form;

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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Plaintiff‟s first amended complaint is dismissed, with leave to amend, for failure

second amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended

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complaint and any attempt to do so will result in an order striking the amended

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complaint; and

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If Plaintiff fails to file an amended complaint, the Court will dismiss this action,
with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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January 28, 2015

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