Paige v. CAL PIA et al

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 1/4/13 ORDERING that plaintiff shall submit, within 30 days from the date of service of this order, either the $350.00 filing fee or a properly completed application to proceed in forma paupe ris on the form provided with this order; Plaintiffs complaint is DISMISSED with 30 days to file an amended complaint. Clerk of the Court is directed to send plaintiff an Application to Proceed In Forma Pauperis By a Prisoner and a § 1983 civil rights complaint.(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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DAVID A. PAIGE,

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Plaintiff,

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vs.

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No. 2:12-cv-3023 DAD P

CAL PIA, et al.,

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Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff has not paid the required filing fee of $350.00 or filed an

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application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) & 1915(a). Plaintiff will be

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granted thirty days to pay the filing fee in full or submit a properly completed application to

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proceed in forma pauperis.

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Plaintiff is cautioned that the in forma pauperis application form includes a

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section that must be completed by a prison official, and the form must be accompanied by a

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certified copy of plaintiff’s prison trust account statement for the six-month period immediately

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preceding the filing of this action.

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In addition, the court will order plaintiff to file an amended complaint using the
form complaint provided by the court. The court notes that it cannot be determined from the
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allegations of the original complaint whether plaintiff has exhausted his administrative remedies

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prior to filing this civil rights action as is required. Accordingly, plaintiff is advised that he must

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answer each question posed in the form complaint, including the section concerning the

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exhaustion of administrative remedies.

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Plaintiff is also advised that the California Prison Industry Authority is not a

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proper defendant for a civil rights action. The Civil Rights Act under which this action was filed

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provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. Thus, in his amended complaint plaintiff must allege that: (1) a person was

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acting under color of state law at the time the complained of act was committed; and (2) that

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person’s conduct deprived plaintiff of rights, privileges or immunities secured by the

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Constitution or laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981). The

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Prison Industry Authority is not a “person” and as a state agency is entitled to Eleventh

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Amendment immunity. See Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir.1999) (“In

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the absence of a waiver by the state or a valid congressional override, under the eleventh

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amendment, agencies of the state are immune from private damage actions or suits for injunctive

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relief brought in federal court. The State of California has not waived its Eleventh Amendment

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immunity with respect to claims brought under § 1983 in federal court, and the Supreme Court

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has held that § 1983 was not intended to abrogate a State’s Eleventh Amendment immunity[.]”).

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The same applies to defendant California Department of Corrections and Rehabilitation.

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Therefore, in his amended complaint, plaintiff must name a proper defendant.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to

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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 involvement of each defendant must be sufficiently alleged.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff shall submit, within thirty days from the date of service of this order,

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either the $350.00 filing fee or a properly completed application to proceed in forma pauperis on

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the form provided with this order;

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2. Plaintiff’s complaint is dismissed;

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3. 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 to this case and must be labeled “Amended Complaint”;

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4. Plaintiff is cautioned that failure to comply with this order or seek an extension

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of time to do so will result in a recommendation that this action be dismissed without prejudice;

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and

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5. The Clerk of the Court is directed to send plaintiff an Application to Proceed

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In Forma Pauperis By a Prisoner and a § 1983 civil rights complaint.

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DATED: January 4, 2013.

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DAD:mp/4
paig3023.3lta

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