Smith v. Aubuchon, et al.

Filing 70

ORDER signed by District Judge Kimberly J. Mueller on 4/12/18 ADOPTING 64 FINDINGS AND RECOMMENDATIONS: 61 Motion to Dismiss is granted. Plaintiff's third amended complaint is dismissed with leave to amend. Plaintiff is granted thirty days from the date of this order in which to file a fourth amended complaint. The Clerk of the Court is directed to send plaintiff the court's form § 1983 civil rights complaint. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM GRANVILLE SMITH,

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Plaintiff,

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No. 2:14-cv-0775-KJM-CMK-P

v.

ORDER

B. AUBUCHON, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under

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42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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Eastern District of California local rules.
On June 1, 2017, defendants filed a motion to dismiss. ECF No. 61. Plaintiff did

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not file an opposition to the motion, and on September 1, 2017, the magistrate judge filed findings

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and recommendations recommending the motion be granted and this action dismissed with

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prejudice. ECF No. 64. The findings and recommendations were served on the parties and

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contained notice that the parties may file objections within a specified time. After receiving an

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extension of time, plaintiff timely filed objections to the findings and recommendations on

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October 27, 2017. ECF No. 67. On March 12, 2018, plaintiff filed a proposed third amended

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complaint. ECF No. 68.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304(f), this court has conducted a de novo review of this case. For the reasons set forth below,

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the court adopts the magistrate judge’s findings and the recommendation that the second amended

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complaint be dismissed. The court declines to adopt the recommendation that this action be

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dismissed with prejudice and refers the matter back to the assigned magistrate judge for further

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proceedings consistent with this order.

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The court has reviewed the second amended complaint and concurs in the

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magistrate judge’s finding that it fails to state a cognizable claim for relief. On this record,

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however, the court cannot find that “it is absolutely clear that no amendment can cure the defect”

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in plaintiff’s pleadings. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1994) (quoted in ECF

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No. 64 at 5). While it was filed prematurely, the third amended complaint will also be dismissed

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and plaintiff will be granted one final opportunity to amend his complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See,

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e.g., West v. Atkins, 487 U.S. 42, 48 (1988). The fourth amended complaint must be prepared on

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the form provided with this order. Plaintiff must identify each defendant, and he must allege in

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specific terms how each named defendant was involved in the alleged violation of his

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constitutional rights. There can be no liability under 42 U.S.C. § 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of

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official participation in civil rights violations are not sufficient. . . .” Ivey v. Board of Regents,

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673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to any prior complaint

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in order to make his fourth amended complaint complete. Federal Rule of Civil Procedure 15 and

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Local Rule 220 require that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, any amended complaint supersedes all prior

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complaints. See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an
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‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”

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(internal citation omitted)). Once plaintiff files a fourth amended complaint, all prior complaints

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will no longer serve any function in the case. Therefore, plaintiff must include in the fourth

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amended complaint all claims he wants to raise in this action and each claim and the involvement

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of each defendant must be sufficiently alleged.

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

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The findings and recommendations filed September 1, 2017, are adopted in

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Defendants’ motion to dismiss (Doc. 61) is granted;

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Plaintiff’s third amended complaint is dismissed with leave to amend;

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Plaintiff is granted thirty days from the date of this order in which to file a

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fourth amended complaint; and

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5.

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part;

The Clerk of the Court is directed to send plaintiff the court’s form § 1983

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civil rights complaint and accompanying instructions, with this order.

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DATED: April 12, 2018.

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UNITED STATES DISTRICT JUDGE

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