Jenkins v. Lares, et al.

Filing 12

ORDER DISMISSING CASE WITH LEAVE TO AMEND within 30 days signed by Magistrate Judge Kendall J. Newman on 04/30/15 ORDERING that Defendants Newton, C. Nelson, C. Hale, Lt. Angulo, J.D. Lozano, and Young are DISMISSED from this action without prejudi ce; all claims in the original complaint are DISMISSED without prejudice except for the due process claims against defendants Peery, Gower and Barnes; the retaliation claims against defendants Parker, Drake and McGrath; and the Eighth Amendment claims against defendants Blauser and Smith; the 11 amended complaint is DISMISSED; Clerk to send plaintiff copy of pages 1-10 of 1 original complaint. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEE JENKINS, JR.,

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No. 2:13-cv-2273 KJN P

Plaintiff,
v.

ORDER

LARES, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff consented to proceed before the

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undersigned for all purposes. See 28 U.S.C. § 636(c). Plaintiff’s amended complaint is now

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before the court.

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First, plaintiff states that he will not proceed against defendants Newton, C. Nelson, C.

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Hale, Lt. Angulo, J.D. Lozano, and Young. (ECF No. 11 at 4-5.) In addition, plaintiff consents

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to the dismissal of the claims found not colorable in the August 13, 2014 order. (ECF No. 11 at

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5.) Accordingly, defendants Newton, C. Nelson, C. Hale, Lt. Angulo, J.D. Lozano, and Young

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are dismissed from this action without prejudice. In addition, all claims in the original complaint

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are dismissed without prejudice except for the due process claims against defendants Peery,

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Gower and Barnes; the retaliation claims against defendants Parker, Drake and McGrath; and the
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Eighth Amendment claims against defendants Blauser and Smith.
Second, in plaintiff’s document styled “Amended Complaint,” plaintiff does not renew

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those claims found cognizable in the August 13, 2014 order. Rather, plaintiff clarifies his

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retaliation claims against defendants Lares and Barker based on the events that took place in the

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program office for a 602 interview with Sergeant Glenn. Plaintiff now states that defendants

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Lares and Barker were retaliating against plaintiff based on 602 appeals filed against defendants

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Lares and Barker on May 5, 2012, and May 13, 2012. (ECF No. 11 at 3.) In addition, plaintiff

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now claims that defendants Lares and Barker retaliated against plaintiff on June 12, 2012, while

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plaintiff was being interviewed by Sgt. Glenn in the program office, rather than on May 22, 2012,

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as noted in the prior order and the original complaint (ECF No. 1 at 5). Thus, it appears that

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plaintiff states potentially cognizable retaliation claims against defendants Lares and Barker.

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However, as plaintiff was informed in the prior order, an amended complaint must be

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complete in itself without reference to any prior pleading. (ECF No. 8 at 14.) Thus, plaintiff’s

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amended complaint is dismissed and plaintiff is granted leave to file a second amended complaint

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that includes those claims found cognizable in the original complaint, and those clarifying facts

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contained in the amended complaint against defendants Lares and Barker. In other words,

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plaintiff should only include the due process claims against defendants Peery, Gower and Barnes;

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the retaliation claims against defendants Parker, Drake, McGrath, Lares, and Barker; and the

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Eighth Amendment claims against defendants Blauser and Smith.

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

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the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or

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statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended

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complaint must allege in specific terms how each named defendant is involved. There can be no

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

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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Furthermore, 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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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make 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 requirement 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 be

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sufficiently alleged. Plaintiff shall not include any of the claims or defendants dismissed herein.

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Finally, the court notes that plaintiff appended a number of exhibits to his original

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complaint (ECF No. 1 at 11-138), and additional exhibits to his first amended complaint (ECF

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No. 11 at 6-25). Plaintiff is advised that he is not required to append exhibits to any second

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amended complaint. The exhibits that plaintiff has filed are part of the court record and may be

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referred to by any party. The Clerk of the Court is directed to send plaintiff a copy of the first ten

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pages of the original complaint, without the appended exhibits, to assist plaintiff in filing the

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second amended complaint.

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

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1. Defendants Newton, C. Nelson, C. Hale, Lt. Angulo, J.D. Lozano, and Young are

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dismissed from this action without prejudice;
2. All claims in the original complaint are dismissed without prejudice except for the due

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process claims against defendants Peery, Gower and Barnes; the retaliation claims against

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defendants Parker, Drake and McGrath; and the Eighth Amendment claims against defendants

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Blauser and Smith;

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3. Plaintiff’s amended complaint is dismissed;

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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 this case and must be labeled “Second Amended Complaint”; plaintiff

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must file an original and two copies of the second amended complaint; failure to file a second
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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed; and

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5. The Clerk of the Court is directed to send plaintiff a copy of pages 1 - 10 from

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plaintiff’s original complaint. (ECF No. 1 at 1-10.)

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Dated: April 30, 2015

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/jenk2273.14a

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