Hann v. Sacramento County Sheriff Department

Filing 18

ORDER signed by Magistrate Judge John F. Moulds on 8/23/2012, ORDERING that plaintiff's 3 motion for discovery is DENIED as moot; plaintiff's 16 motion for the issuance of a subpoena is DENIED as moot; plaintiff's complaint is DISMISSED; plaintiff has 30 days to file an amended complaint; and the clerk is to send plaintiff a form complaint for a prisoner civil rights action with instructions. (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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EVAN E. HANN,
Plaintiff,

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vs.

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No. 2:11-cv-3368 JFM (PC)

SACRAMENTO COUNTY
SHERIFF’S DEPARTMENT,
et al.,
Defendants.

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ORDER

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

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 19, 2011.

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Plaintiff’s complaint was accompanied by a motion for discovery. By order filed March 26,

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2012, the court determined that plaintiff’s complaint states a cognizable claim for relief against

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unnamed defendants pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). The court further

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found that it could not order service until plaintiff can identify defendants, and that plaintiff’s

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motion for discovery was directed at such identification. For that reason, the court served a copy

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of plaintiff’s complaint and motion for discovery on the Sacramento County Counsel and ordered

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a response to said motion.

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On May 22, 2012, counsel for the Sacramento County Sheriff’s Department filed

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a motion for extension of time to respond to the motion for discovery. On July 18, 2012, counsel

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submitted a letter to the court advising the court that counsel had served a response on plaintiff

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on the same day. A copy of the response is appended to the letter. Good cause appearing, the

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Clerk of the Court will be directed to file counsel’s letter and the appended discovery response.

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Plaintiff’s motion for discovery is now moot and will therefore be denied.

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On July 30, 2012, plaintiff filed a motion for issuance of a subpoena. By that

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motion, which is dated July 22, 2012, it appears that plaintiff seeks issuance of a subpoena to

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obtain the information served on plaintiff on July 18, 2012. Accordingly, plaintiff’s July 30,

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2012 motion will be denied.

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Finally, good cause appearing, plaintiff’s original complaint will be dismissed and

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plaintiff will be granted thirty days in which to file an amended complaint identifying defendants

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involved in the alleged events that form the basis of the claims raised in this action.

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If plaintiff chooses to file an amended complaint, plaintiff must demonstrate how

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the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights.

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See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the amended complaint must allege in

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specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant's actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167

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(9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and

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conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v.

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 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 amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the identity and involvement of each defendant must be sufficiently

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alleged.

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

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1. Plaintiff’s December 19, 2011 motion for discovery is denied as moot;

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2. Plaintiff’s July 30, 2012 motion for issuance of a subpoena is denied as moot;

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3. Plaintiff’s complaint is dismissed;

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4. Plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned this case and must be labeled “Amended Complaint”; plaintiff must file

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an original and two copies of the amended complaint; failure to file an amended complaint in

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accordance with this order will result in a recommendation that this action be dismissed; and

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5. The Clerk of the Court is directed to send plaintiff a copy of the court’s form

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complaint for a prisoner civil rights action under 42 U.S.C. § 1983 and accompanying

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instructions.

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DATED: August 23, 2012.

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