Burton v. McDonald, et al

Filing 63

ORDER signed by Magistrate Judge John F. Moulds on 7/12/2012 ORDERING that plaintiff's third amended complaint is DISMISSED; within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents; defendants' 57 motion to dismiss is DENIED as moot; and defendants shall not respond to any fourth amended complaint unless and until ordered to do so. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HARRISON L. BURTON,

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Plaintiff,

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No. 2:10-cv-1980 JAM JFM (PC)

vs.
WARDEN MCDONALD, et al.,

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Defendants.

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

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filed pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff’s third amended

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complaint, filed July 13, 2011. On January 13, 2012, defendants filed a motion to dismiss

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pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff opposes the motion.

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The claims at bar arise from alleged events in 2009 and 2010 at High Desert State

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Prison (High Desert). Plaintiff claims that his constitutional rights were violated by defendant

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Webster, a supervising cook in the culinary at High Desert, when she allegedly fomented racial

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unrest among white and black inmate culinary workers, treated white and black inmate culinary

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workers differently, and threatened inmates who complained about her contact with reprisal.

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Plaintiff also claims that his constitutional rights were violated by defendants Amero and

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Webster when he was terminated from his culinary job for a period of six months without any

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process at all. Plaintiff alleges that he subsequently returned to work in the culinary.

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Rule 8(a)(3) of the Federal Rules of Civil Procedure requires that a pleading

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include a demand for relief sought in the action. The only relief plaintiff seeks in this action is

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“leave to prosecute this claim of civil rights abuse” and protection from being denied access to

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the prison law library to pursue his claims. Third Amended Complaint, filed July 13, 2011, at 3.

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Neither of these are proper demands for relief in this civil rights action. For that reason,

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plaintiff’s third amended complaint will be dismissed with leave to amend.

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If plaintiff chooses to file a fourth amended complaint, plaintiff must allege facts

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

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

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amended complaint must allege in specific terms how each named defendant is involved. There

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can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection

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between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362

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(1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in

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

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1982).

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

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order to make plaintiff’s fourth amended complaint complete. Local Rule 220 requires that an

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

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

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

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

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

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be sufficiently alleged. Finally, plaintiff must include a demand for all the relief he seeks in this
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action. See Fed. R. Civ. P. 8(a)(3). Failure to demand relief available for the claims raised in

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this action may result in dismissal of the action.

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Defendants’ motion to dismiss is mooted by this order. For that reason, the

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motion will be denied. Defendants will not be required to respond to any fourth amended

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complaint until it has been screened by the court pursuant to the provisions of 28 U.S.C. §

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1915A.

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

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1. Plaintiff’s third amended complaint is dismissed;

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2. Within thirty days from the date of this order, plaintiff shall complete the

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attached Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Fourth Amended Complaint.

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Plaintiff’s fourth amended complaint shall comply with the requirements of the Civil Rights Act,

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

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

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Complaint”; failure to file a fourth amended complaint in accordance with this order may result

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in the dismissal of this action;

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3. Defendants’ January 13, 2012 motion to dismiss is denied as moot; and

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4. Defendants shall not respond to any fourth amended complaint unless and until

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ordered to do so.

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DATED: July 12, 2012.

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12;burt1980.3ac

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HARRISON L. BURTON,

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Plaintiff,

No. 2:10-cv-1980 JAM JFM (PC)

vs.
WARDEN MCDONALD, et al.,

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Defendants.

NOTICE OF AMENDMENT

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Plaintiff hereby submits the following document in compliance with the court's
order filed

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:
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Fourth Amended Complaint

DATED:

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Plaintiff
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