Hampton v. Virga et al

Filing 11

ORDER signed by Magistrate Judge Dale A. Drozd on 1/27/2014 DENYING, as unnecessary, plaintiff's 10 motion to amend; plaintiff's amended complaint is DISMISSED; plaintiff has 30 days to file a second amended complaint; and the Clerk shall send plaintiff a civil rights action form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES HAMPTON,

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No. 2:13-cv-0286 GEB DAD P

Plaintiff,
v.

ORDER

TIM VIRGA et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Pending before the
court is plaintiff’s amended complaint.
SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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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. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed 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. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
their employees under a theory of respondeat superior and, therefore, when a named defendant
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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
PLAINTIFF’S AMENDED COMPLAINT

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In the present case, plaintiff has named Tim Virga, K. Kostecky, J. Clough, and D. Deroco

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identified as defendants. In his brief, vague and conclusory hand written amended complaint1

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plaintiff alleges that the defendants refused to allow him to purchase food from the inmate

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canteen or receive packages based solely on his race. He alleges that “those charged in the

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incident” were allowed to purchase items from the canteen even while in administrative

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segregation. In terms of relief, plaintiff requests monetary damages. (Am. Compl. at 1-3.)

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DISCUSSION

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The allegations of plaintiff’s amended complaint are so vague and conclusory that the

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court is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The amended complaint does not contain a short and plain statement as required by Fed.

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R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must

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give fair notice to the defendants and must allege facts that support the elements of the claim

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plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support his claims. Id. Because plaintiff has failed to comply with the

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requirements of Fed. R. Civ. P. 8(a)(2), the amended complaint must be dismissed. However, the

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court will grant plaintiff leave to file a second amended complaint.

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

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demonstrating how the conditions complained of resulted in a deprivation of plaintiff’s federal

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On August 15, 2013, the court granted plaintiff thirty days in which to file an amended
complaint. On September 19, 2013, plaintiff filed what is an amended complaint but labeled it as
a Motion to Amend.” (See Doc. No. 10.) The court has construed that filing as plaintiff’s
amended complaint.
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constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). In addition,

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plaintiff must allege in specific terms how each named defendant was involved in the deprivation

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of plaintiff’s rights. In his first amended complaint, plaintiff has identified four individuals as the

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defendants in this action. However, plaintiff has not alleged what specific acts each defendant

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engaged in to violate his constitutional rights. Plaintiff is advised that there can be no liability

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under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s

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actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633

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F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 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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Finally, to the extent plaintiff may be attempting to proceed on an equal protection claim,

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he is advised that the Equal Protection Clause “is essentially a direction that all persons similarly

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situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S.

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432, 439 (1985). “Prisoners are protected under the Equal Protection Clause of the Fourteenth

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Amendment from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539,

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556 (1974). To state a cognizable claim under the Equal Protection Clause, a prisoner “must

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plead intentional unlawful discrimination or allege facts that are at least susceptible of an

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inference of discriminatory intent.” Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 1205,

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1212 (9th Cir. 2009) (quoting Monteiro v. Tempe Union High School District, 158 F.3d 1022,

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1026 (9th Cir. 1998)). “Intentional discrimination means that a defendant acted at least in part

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because of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003)

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(emphasis in original) (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)).

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In plaintiff’s amended complaint, he claims in conclusory fashion that the defendants

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treated him differently based on his race. However, plaintiff must allege additional facts before

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the court can find that he states a cognizable claim under the Equal Protection Clause. For

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example, plaintiff mentions that defendants allowed “those charged in the incident” to purchase

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items from the canteen but not him. Plaintiff will need to explain in any second amended

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complaint he may elect to file whether “those charged in the incident” were of a different race
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than him and whether they were similarly situated to him. Moreover, if “those charged in the

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incident” to which plaintiff refers were in administrative segregation and he was not, then it

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would appear that he was not similarly situated to them. In any second amended complaint he

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elects to file, plaintiff might also allege facts explaining whether the defendants treated just him

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differently or treated him as well as other inmates of his same race differently.

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Plaintiff is informed that the court cannot refer to prior pleadings in order to make his

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second amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files a second amended complaint, the prior pleading no longer serves

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any function in the case. Therefore, in a second amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend (Doc. No. 10) is denied as unnecessary;

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2. Plaintiff’s amended complaint is dismissed.

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3. Plaintiff is granted thirty days from the date of service of this order to file a second

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

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

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docket number assigned to this case and must be labeled “Second Amended Complaint”; failure

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to file a second amended complaint in accordance with this order will result in a recommendation

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that this action be dismissed without prejudice; and

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4. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil

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rights action.

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Dated: January 27, 2014

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DAD:9
hamp0286.14a

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