Hoffmann v. Corning Police Department

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 3/27/15 ORDERING that Plaintiffs motion for leave to amend (ECF No. 14 ) is denied without prejudice; Within 30 days from the date of this order, plaintiff shall renew the motion to amend and submit a proposed second amended complaint; and the Clerk of the Court is directed to send plaintiff the form for filing a civil rights 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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ROBIN LEE HOFFMAN,

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Plaintiff,

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No. 2:14-cv-2736 MCE KJN P

v.

ORDER

JUSTIN JOURDAN, et al.,

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Defendants.

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Plaintiff is a former county jail inmate, proceeding pro se, with this civil rights action

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seeking relief pursuant to 42 U.S.C. § 1983. On January 28, 2013, plaintiff filed an amended

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complaint as of right. Fed. R. Civ. P. Rule 15(a)(1).
On March 23, 2013, plaintiff filed a motion for leave to amend his complaint. Plaintiff’s

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motion was not, however, accompanied by a proposed amended complaint. As a litigant

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proceeding in forma pauperis, plaintiff’s pleadings are subject to evaluation by this court pursuant

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to the in forma pauperis statute. See 28 U.S.C. § 1915A. Because plaintiff did not submit a

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proposed amended complaint, the court is unable to evaluate it. Thus, plaintiff’s motion is denied

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without prejudice to its renewal, accompanied by a proposed second amended complaint.
In her motion to amend, plaintiff seeks to amend to add John Does now identified by

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name, to name Super 8 motel employees as defendants, and to add an alleged wrongful eviction

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claim.
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The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

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affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient).

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Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ.
P. 18(a). Unrelated claims against different defendants must be pursued in multiple lawsuits.
The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party
asserting a claim . . . may join, [] as independent or as alternate
claims, as many claims . . . as the party has against an opposing
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party.’ Thus multiple claims against a single party are fine, but
Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2. Unrelated claims against different
defendants belong in different suits, not only to prevent the sort of
morass [a multiple claim, multiple defendant] suit produce[s], but
also to ensure that prisoners pay the required filing fees-for the
Prison Litigation Reform Act limits to 3 the number of frivolous
suits or appeals that any prisoner may file without prepayment of
the required fees. 28 U.S.C. § 1915(g).

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of

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defendants not permitted unless both commonality and same transaction requirements are

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satisfied).

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To the extent that the now-identified John Does were involved in the alleged excessive

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force claim raised against defendant Jourdan, plaintiff should include such individuals in any

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proposed second amended complaint. However, Super 8 motel employees do not act under color

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of state law. In addition, plaintiff’s claim of wrongful eviction is not a constitutional violation,

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and is not related to the Fourth Amendment excessive force claim raised against defendant

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Jourdan. Thus, plaintiff should not seek to amend to add such employees or the alleged eviction

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claim in any second amended complaint.

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If plaintiff chooses to file a motion to amend accompanied by a proposed second amended

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complaint, plaintiff must demonstrate how the conditions complained of have resulted in a

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deprivation of plaintiff’s federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d

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

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

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

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

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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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. Thus, plaintiff should include her allegations as to defendant Jourdan in any

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proposed second amended complaint.

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Because it appears plaintiff seeks to file a second amended complaint, the court will not

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order service of process on defendant Jourdan. However, because plaintiff has provided the

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documents for service of process for defendant Jourdan, plaintiff must file a motion to amend and

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proposed second amended complaint within thirty days. If plaintiff fails to file such motion, this

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case will proceed on plaintiff’s amended complaint, and the court will order service of process on

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defendant Jourdan.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to amend (ECF No. 14) is denied without prejudice;

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2. Within thirty days from the date of this order, plaintiff shall renew the motion to amend

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and submit a proposed second amended complaint; and
3. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights

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complaint.

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Dated: March 27, 2015

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