Davies v. DelaVega et.al.

Filing 25

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/17/15 ORDERING that Plaintiffs amended complaint is dismissed. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint. Plaintiffs motions for preliminary injunctive relief (ECF Nos. 22 & 23 ) are denied without prejudice to renewal after a defendant has been served with process. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AVON DAVIES,

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No. 2:14-cv-2831 CKD P
Plaintiff,

v.

ORDER

M. DELAVEGA, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding in forma pauperis with an action for violation of

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civil rights under 42 U.S.C. § 1983. He has consented to have all matters in this action before a

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United States Magistrate Judge. See 28 U.S.C. 636(c). On December 17, 2014, plaintiff’s

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complaint was dismissed with leave to file an amended complaint. Plaintiff has now filed an

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amended complaint.

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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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in
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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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The court finds the allegations in plaintiff’s amended complaint so vague and conclusory

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that it fails to state a claim upon which relief can be granted. Although the Federal Rules adopt a

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flexible pleading policy, a complaint must give fair notice and state the elements of the claim

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plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support plaintiff’s claim. Id. Plaintiff’s amended complaint must be dismissed.

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The court will, however, grant plaintiff one final opportunity to amend his complaint.

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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). Plaintiff complains about the

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denial of adequate medical care. Plaintiff is informed that denial or delay of medical care for a

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prisoner’s serious medical needs may constitute a violation of the prisoner’s Eighth Amendment

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rights. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). An individual is liable for such a

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violation only when the individual is deliberately indifferent to a prisoner’s serious medical

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needs. Id.

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If plaintiff choses to file a second amended complaint, plaintiff must allege in specific

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terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983

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unless there is some affirmative link or connection between a defendant’s actions and the claimed

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

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1980); 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 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 a second amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in a second amended complaint, as

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in an original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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Finally, the court notes that plaintiff has filed two motions for preliminary injunctive

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relief. Because no defendants have been served with process, the court does not have jurisdiction

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to issue any orders granting preliminary injunctive relief. Therefore, plaintiff’s motions will be

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denied without prejudice to renewal after a defendant has been served with process.

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

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1. Plaintiff’s amended complaint is dismissed.

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2. 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 this order, the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint

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must bear the docket number assigned this case and must be labeled “Second Amended

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Complaint”; plaintiff must file an original and two copies of the second amended complaint;

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failure to file a second amended complaint in accordance with this order will result in a

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recommendation that this action be dismissed.

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3. Plaintiff’s motions for preliminary injunctive relief (ECF Nos. 22 & 23) are denied

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without prejudice to renewal after a defendant has been served with process.

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Dated: March 17, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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davi2831.14(2)

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