Anderson v. McIntrny, et al.

Filing 17

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/24/14 ORDERING that the Second Amended Complaint (ECF No. 16 ) is DISMISSED with thirty days from the date of this order to file a Third Amended Complaint. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR ANDERSON,

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Plaintiff,

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No. 2:14-cv-0011 CKD P

v.

ORDER

McINTRNY, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief

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pursuant to 42 U.S.C. § 1983. Plaintiff’s First Amended Complaint was dismissed for failure to

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state a claim, and plaintiff was granted leave to amend. (ECF No. 13.) Before the court is

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plaintiff’s Second Amended Complaint (“SAC”), filed April 4, 2014.1 (ECF No. 16.)
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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As the first complaint screened in this action was the First Amended Complaint (see ECF No.
13, n.1), the SAC reflects only the first round of amendment.
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Here, the court finds that the SAC fails to cure the defects of the previous complaint.

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Plaintiff alleges that defendant McIntry2 called him a racist name and told him that if he filed a

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602 inmate appeal, it would “go nowhere.” Some unspecified time later, plaintiff filled out a 602

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appeal against McIntry and gave it to non-defendant Correctional Officer Handshoemaker for

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pick-up. Because he never received a notice it had been submitted, plaintiff assumed that the

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appeal was thrown away. He alleges that McIntry and Handshoemaker work together. Plaintiff

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filed a second 602 appeal about McIntry and was subsequently interviewed about it.

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On these bare allegations, plaintiff fails to state a cognizable claim. (See ECF No. 13 at 3

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(legal standard for retaliation claim pursuant to § 1983).) To state a § 1983 claim, a plaintiff must

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allege facts showing each named defendant either exhibited some sort of “direct personal

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participation in the deprivation” or “set[ ] in motion a series of acts by others which the actor

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[knew] or reasonably should [have known] would cause others to inflict the constitutional injury.”

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Johnson v. Duffy, 588 F.2d 740, 743–744 (9th. Cir. 1978). There must be an actual causal link

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between the actions of the named defendants and the alleged constitutional deprivation. See

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Monell v. Dep’t of Soc. Services, 436 U.S. 658, 691–92 (1978).

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However, the court will grant plaintiff one final opportunity to amend. If plaintiff chooses

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to amend the complaint, plaintiff must demonstrate how the conditions complained of have

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resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227

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(9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is

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

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

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U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d

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740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation

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

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1982). If plaintiff chooses to amend the complaint, he should set forth a “short and plain

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statement” of his claim and any related claims against the appropriate defendants.

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Spelled “McIntrny” in the original complaint and in the caption of this action.
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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 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. The Second Amended Complaint (ECF No. 16) is dismissed;

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2. Plaintiff is granted thirty days from the date of this order to file a Third Amended

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Complaint. Failure to timely file an amended complaint will result in a recommendation that this

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action be dismissed.

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Dated: April 24, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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