Rankin v. Suisun Police Department et al

Filing 6

ORDER signed by Magistrate Judge John F. Moulds on 8/18/11 ORDERING that Pltf's amended complaint is dismissed; Within 30 days from the date of this order, pltf shall complete and submit the Notice of Amendment and and an original and one copy o f the Second Amended Complaint; failure to file a second amended complaint, may result in the dismissal of this action. If plaintiff does not file an amended complaint w/i 30 days of the date of this order, this matter shall proceed on plaintiff's first amended complaint. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN LORENZO RANKIN,
Plaintiff,

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vs.
SUISIN POLICE DEP’T, et al.,
Defendants.

ORDER
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No. CIV 2:11-cv-0145-MCE-JFM

Plaintiff is proceeding pro se and in forma pauperis with an action filed pursuant

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to 42 U.S.C. § 1983. By order filed April 8, 2011, plaintiff's complaint was dismissed with leave

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to file an amended complaint. Plaintiff has now filed an amended complaint.

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A federal court must dismiss an action brought under 28 USC § 1915 at any time

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if it determines that the action “is frivolous or malicious,” “fails to state a claim on which relief

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may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.”

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28 USC 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in

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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-

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28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless.
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Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d

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639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint, or portion thereof, should only be dismissed for failure to state a

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claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

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of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

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Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

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v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

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complaint under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The court has reviewed plaintiff’s amended complaint against the Suisin Police

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Department, Eric Riley, Assisting Officer Andrew White, Office Arroyo, Officer Martinez and

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Officer Sousa. Upon review, the court finds that plaintiff has stated a claim against the arresting

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officers, Arroyo, Sousa and Martinez. As to the remaining defendants, plaintiff’s amended

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complaint fails for three reasons. First, there are no charging allegations as to defendants Riley

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or White. Plaintiff attaches to his amended complaint a copy of the Evidence Report taken

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following his arrest. This document was signed by Eric Riley. This, however, without more, is

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insufficient to state a claim. Second, as to the Suisin Police Department, plaintiff was previously

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informed that, to impose municipal liability under § 1983 for a violation of constitutional rights,

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plaintiff must show: (1) that he possessed a constitutional right of which he was deprived; (2)

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that the municipality had a policy; (3) that this policy amounts to deliberate indifference to

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plaintiff's constitutional rights; and (4) that the policy is the moving force behind the

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constitutional violation. See Plumeau v. School Dist. # 40 County of Yamhill, 130 F.3d 432,

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438 (9th Cir. 1997). Plaintiff has again failed to make this showing. Lastly, in his prayer for
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relief, plaintiff seeks damages from defendants “for the removal and remediation costs and

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related expenses and natural resource damage incurred and to be incurred by plaintiff.” See Am.

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Compl. at 3. These remedies are inapposite to the nature of the case at hand.

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If plaintiff chooses to file a second amended complaint, plaintiff must

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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 second

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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 second 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 second amended complaint, the

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

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

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1. Plaintiff's amended complaint is dismissed; and

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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:
a. The completed Notice of Amendment; and
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b. An original and one copy of the Second Amended Complaint.

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Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights

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

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

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Amended Complaint”; failure to file a second amended complaint in accordance with this order

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may result in the dismissal of this action.

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3. If plaintiff does not file an amended complaint within thirty days of the date of

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this order, this matter shall proceed on plaintiff’s first amended complaint.

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DATED: August 18, 2011.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN LORENZO RANKIN,
Plaintiff,

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vs.
SUISIN POLICE DEP’T, et al.,
Defendants.

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

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NOTICE OF AMENDMENT

____________________________/

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No. CIV 2:11-cv-0145-MCE-JFM

:
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Second Amended Complaint

DATED:

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Plaintiff
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