Whitaker v. Crane, et al.

Filing 15

ORDER signed by Magistrate Judge Dale A. Drozd on 10/2/2013 DENYING, without prejudice, plaintiff's 2 application to proceed IFP; within 30 days, plaintiff shall file a new ifp application and include a certified trust account statement; plaintiff's 7 and 10 amended complaints are DISMISSED; plaintiff has 30 days to file a second amended complaint; and the Clerk shall provide plaintiff with the § 1983 complaint form and an application to proceed ifp. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH WHITAKER,

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Plaintiff,

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No. 2:13-cv-00505 KJM DAD P

v.

ORDER

CRANE, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Before the court are two amended complaints filed by plaintiff as well as his

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application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was

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referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I. Application to Proceed In Forma Pauperis
Plaintiff has submitted an incomplete application to proceed in forma pauperis. Plaintiff’s

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application does not contain the certification that must be completed by an authorized prison

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official and plaintiff has not included a certified copy of his prison trust account statement.

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Plaintiff will therefore be ordered to submit a new application to proceed in forma pauperis in this

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action.

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II. Plaintiff’s Amended Complaints

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On March 26, 2013, plaintiff’s complaint was dismissed with leave to amend within thirty

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days because the court was unable to determine the nature of plaintiff’s claims. (ECF No. 4.) On

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April 4, 2013, plaintiff filed an amended complaint using the court’s form complaint for a civil

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rights action. Subsequently, on May 30, 2013, plaintiff filed a handwritten document styled,

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“Amended Complaint 42 USC 1983 + Exhibits.” Nevertheless, the court has reviewed both

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amended complaints. However, given the allegations set forth therein the nature of plaintiff’s

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claims remain confusing and vague. It appears plaintiff believes the defendants, who are medical

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and correctional staff at California State Prison - Sacramento, have threatened him with housing

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or program changes and engaged in unspecified misconduct. However, plaintiff has failed to

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clarify the nature of that alleged misconduct, the involvement of each named defendant in any

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misconduct directed at him, and which of his constitutional rights were allegedly violated as a

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result of that misconduct. Therefore, plaintiff’s amended complaints will be dismissed and he

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will be provided a final opportunity to correct these deficiencies by filing a second amended

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complaint.

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III. Requirements for a Second Amended Complaint

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In his second amended complaint, plaintiff must allege facts demonstrating how the

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conditions complained of resulted in a deprivation of his federal constitutional or statutory rights.

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

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specific terms how each named defendant was involved in the deprivation of plaintiff’s rights.

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

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362 (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). Vague and conclusory allegations of official participation in civil rights

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violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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

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plaintiff’s second 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 his second amended complaint, the prior

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pleadings no longer serve any function in the case. Therefore, in a second amended complaint, as

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in an original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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III. Conclusion

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

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1. Plaintiff’s March 13, 2013 application to proceed in forma pauperis (ECF No. 2) is

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denied without prejudice.
2. Within thirty days from the service of this order, plaintiff shall file a new application to
proceed in forma pauperis and include a certified copy of his trust account statement.
3. Plaintiff’s amended complaints filed on April 4, 2013 and May 30, 2013 (ECF No. 7 &
10) are dismissed.
4. 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”; plaintiff

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must use the form complaint provided with this order and answer each question.

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5. The Clerk of the Court is directed to provide plaintiff with the court's form complaint
for a § 1983 action and the application to proceed in forma pauperis by a prisoner.
6. Plaintiff’s failure to comply with this order will result in a recommendation that this

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action be dismissed without prejudice.

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Dated: October 2, 2013

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DAD:4
whit505.14sec

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