Webb v. Lopez

Filing 11

ORDER DISMISSING FIRST AMENDED COMPLAINT and Granting Plaintiff Leave to File a Second Amended Complaint signed by Magistrate Judge Gary S. Austin on 05/16/2015. Amended Complaint due by 6/22/2015. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-01846 GSA PC

DONNELL WEBB,

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

vs.
J. LOPEZ, et al.,

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Defendants.

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AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

Screening Requirement
Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil

rights action pursuant to 42 U.S.C. § 1983.

Plaintiff has consented to magistrate judge

jurisdiction pursuant to 28 U.S.C. § 636(c).1
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
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Plaintiff filed a consent to proceed before a magistrate judge on December 4, 2014 (ECF No 5).
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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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appeal . . . fails to state a claim upon which relief may be granted.”

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1915(e)(2)(B)(ii).

28 U.S.C. §

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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. Swierkewicz 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.

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

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plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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However, “the liberal pleading standard . . . . applies only to a plaintiff’s factual allegations.”

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Nietze v. Williams, 490 U.S. 319, 330 n. 9 (1989). “[A] liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled.” Bruns v.

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Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)(quoting Ivey v.Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982)).

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II.

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Plaintiff’s Claims
Plaintiff, formerly an inmate in the custody of the California Department of Corrections

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and Rehabilitation (CDCR) at Kern Valley State Prison, brings this action against defendant

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correctional officials employed by the CDCR at Kern Valley. Plaintiff names as defendants

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Lieutenant Vega, Correctional Officer (C/O) Tangen and C/O Lopez.

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This action proceeds on the first amended complaint, filed in response to an earlier

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order severing Plaintiff’s claims from the original multi-plaintiff complaint and directing

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Plaintiff to file his own claims. Plaintiff’s statement of claim is that Defendants failed to lock

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up cleaning supplies and as a result he was injured. Plaintiff alleges that “directly after the riot,

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they put us back into a hostile environment with the same attacking latino inmates without my

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consent.” Plaintiff appears to allege facts in addition to those alleged in the original complaint.

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Plaintiff is advised that once an amended complaint is filed, that complaint supersedes the
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original complaint and the Court will not refer to the original complaint in order to make the

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amended complaint complete. Plaintiff must set forth all of his allegations in an amended

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complaint.

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Further, Plaintiff fails to charge each individual defendant with specific conduct.

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Plaintiff has not linked Defendants to any acts or omissions that violated Plaintiff’s federal

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rights. Therefore, Plaintiff fails to state claims against them. The first amended complaint

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must therefore be dismissed. Plaintiff will, however, be granted leave to file a second amended

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complaint. Plaintiff need not, however, set forth legal arguments in support of his claims. In

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order to hold an individual defendant liable, Plaintiff must name the individual defendant,

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describe where that defendant is employed and in what capacity, and explain how that

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defendant acted under color of state law. Plaintiff should state clearly, in his own words, what

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happened. Plaintiff must describe what each defendant, by name, did to violate the particular

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right described by Plaintiff.

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III.

Conclusion

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The Court has screened Plaintiff’s first amended complaint and finds that it does not

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state 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 an amended complaint curing the deficiencies identified by

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

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cautioned that he may not change the nature of this suit by adding new, unrelated claims in his

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amended complaint.

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

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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.

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

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

Although accepted as true, the “[f]actual

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Finally, Plaintiff is advised that an amended complaint supersedes the original

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complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987), and must be “complete and in and of itself without reference to
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the prior or superseded pleading.” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of

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action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814

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(9th Cir. 1981)).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a

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2.

The Clerk’s Office shall send to Plaintiff a complaint form;

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3.

Within thirty days from the date of service of this order, Plaintiff shall file an

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claim;

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

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

May 16, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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