Thomas v. Hamkar, et al.

Filing 14

ORDER signed by Magistrate Judge Carolyn K. Delaney on 02/18/15 ordering the 1/09/15 recommendation that this action be dismissed with prejudice is hereby vacated, to be replaced with the language "without prejudice, with leave to amend." O therwise the findings and recommendations remain in place. The clerk of the court shall withdraw the referral of the 1/09/15 findings and recommendations to a district judge for a dispositive ruling, as plaintiff has been granted leave to amend. Plaintiff is granted 30 days from the date of this order to file an amended complaint. (Plummer, M) Modified on 2/19/2015 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH THOMAS,

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No. 2:14-cv-2365 TLN CKD P

Plaintiff,
v.

ORDER

B. HAMKAR, et al.,
Defendants.

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Plaintiff commenced this pro se prisoner civil rights action on October 8, 2014. (ECF No.

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1.) On January 9, 2015, the undersigned determined that plaintiff’s complaint, which sought

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medical marijuana for plaintiff’s hip pain, failed to state a claim upon which relief could be

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granted. (ECF No. 9.) The court further determined that the complaint could not be cured by

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amendment and recommended dismissal with prejudice. (Id.)

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Plaintiff has filed objections to the findings and recommendations. He seeks leave to file

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an amended complaint. (ECF Nos. 12, 13.) In the interest of justice, the court will vacate its

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earlier recommendation of dismissal with prejudice and grant plaintiff leave to amend.

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Plaintiff should note that although he has been given the opportunity to amend, it is not for

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the purpose of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). If

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plaintiff chooses to amend the complaint, he should carefully read this screening order and focus

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his efforts on curing the deficiencies set forth therein.
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In his amended complaint, plaintiff must demonstrate how the conditions complained of

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

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227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant

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

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

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

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F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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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 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 January 9, 2015 recommendation that this action be dismissed “with prejudice” is

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hereby vacated, to be replaced with the language “without prejudice, with leave to amend.”

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Otherwise, the findings and recommendations remain in place.

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2. The Clerk of Court shall withdraw the referral of the January 9, 2015 findings and

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recommendations to a district judge for a dispositive ruling, as plaintiff has been granted leave to

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amend.

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3. Plaintiff is granted thirty days from the date of this order to file an amended complaint.

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Failure to file an amended complaint within the time allotted will result in a recommendation that

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this action be dismissed.

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Dated: February 18, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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