Wallace v Cullen et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/27/11 ORDERING that the amended complaint is DISMISSED with 30 days to file an amended complaint. Clerk is directed to send plaintiff a form for filing a civil rights action. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD D. WALLACE,
Plaintiff,

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vs.

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No. CIV S-10-2963 GEB EFB P

VINCENT S. CULLEN,
Defendant.

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ORDER
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Plaintiff, a state prisoner, proceeds pro se and in forma pauperis in a civil rights action

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brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1). After a dismissal pursuant to 28 U.S.C. § 1915A, plaintiff has

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filed an amended complaint.

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Pursuant to § 1915A, the court shall review “a complaint in a civil action in which a

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prisoner seeks redress from a governmental entity or officer or employee of a governmental

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entity.” 28 U.S.C. § 1915A(a). “On review, the court shall identify cognizable claims or dismiss

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the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or

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fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a

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defendant who is immune from such relief.” Id. § 1915A(b).

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In the court’s initial screening order, the court informed plaintiff that any amended

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complaint must comply with certain requirements. Dckt. No. 10. The amended complaint fails

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to comply with those requirements, and will therefore be dismissed with leave to amend.

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Contrary to the court’s instructions, the amended complaint does not contain a caption

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including the names of all parties. In any second amended complaint, plaintiff must identity who

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he intends to name as defendants in this action. Plaintiff must also include factual allegations

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showing how each defendant was personally involved in violating his federal rights. And, as

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plaintiff is aware, he must sign his complaint. The amended complaint is not signed.

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Accordingly, the amended complaint will be dismissed. Any second amended complaint must

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cure the deficiencies identified above and adhere to the following requirements:
Any amended complaint shall identify each defendant in both the caption and the body of

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the amended complaint, and clearly set forth the allegations against each such defendant.

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Pursuant to Rule 8 of the Federal Rules of Civil Procedure, any amended complaint must include

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“a short and plain statement of the claim” showing entitlement to relief. Fed. R. Civ. P. 8(a)(2).

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Any amended complaint must be complete in itself without reference to any prior

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pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

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plaintiff files an amended complaint, the original pleading is superseded.

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It must show that the federal court has jurisdiction and that plaintiff’s action is brought in

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the right place, that plaintiff is entitled to relief if plaintiff’s allegations are true, and must

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contain a request for particular relief. Plaintiff must identify as a defendant only persons who

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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

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Johnson, 588 F.2d at 743-44 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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Plaintiff is also hereby reminded that it is his responsibility to allege facts to state a

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plausible claim for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Moss v. U.S. Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009). In order to state a claim under 42 U.S.C. § 1983, a

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plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that

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the violation was committed by a person acting under the color of state law. See West v. Atkins,

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487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection

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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

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Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable for

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the unconstitutional conduct of his or her subordinates. Iqbal, 129 S. Ct. at 1948. Because

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respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must plead that each

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Government-official defendant, through the official’s own individual actions, has violated the

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Constitution.” Id.

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Accordingly, it is hereby ORDERED that:

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1. The amended complaint is dismissed.

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2. The Clerk is directed to send plaintiff a form for filing a civil rights action under 42

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U.S.C. § 1983.

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3. Any amended complaint must be filed within 30 days. It must bear the docket number

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assigned to this case and be titled “Second Amended Complaint.” Failure to comply with this

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order will result in a recommendation that this action be dismissed. If plaintiff files an amended

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complaint stating a cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: October 27, 2011.

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