Dearwester v. California Department of Corrections and Rehabilitation et al

Filing 17

ORDER signed by Magistrate Judge Dennis M. Cota on 06/18/2020 DISMISSING 12 First Amended Complaint with leave to amend. Second Amended Complaint due within 30 days of the date of service of this order. (Tupolo, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK LEE DEARWESTER,

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No. 2:15-CV-0443-KJM-DMC-P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is plaintiff’s first amended complaint (ECF No. 12).

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the Court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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In this case, plaintiff names the following defendants: (1) California Department of

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Corrections and Rehabilitation; (2) California State Prison, Deuel Vocational Institution; (3) DOE

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Employees 01-25. See ECF No. 12.

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In the process of plaintiff’s transfer from Deuel Vocational Institution to California

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State Prison, Los Angeles County, an unidentified Transportation Officer deprived plaintiff of his

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property in violation of his due process rights. The Officer took plaintiff’s reading glasses without

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returning them and disposed of twenty-one paperback books, seven magazines, three jars of

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Folgers instant coffee (8 oz. each), and one pair of Nike shower shoes. Although plaintiff signed

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inventory forms accounting for his missing property, he was required to sign the forms to recover

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his property before he could inspect the items. Plaintiff alleges he was coerced into signing the

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forms under a perceived threat of retaliation or loss of his property.

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II. DISCUSSION
The Eleventh Amendment prohibits federal courts from hearing suits brought

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against a state both by its own citizens, as well as by citizens of other states. See Brooks v.

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Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition

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extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t

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of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989). A state’s agency responsible for incarceration and correction of prisoners is a state

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agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782
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(1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en banc).
Plaintiff fails to allege the identity of the Transportation Officer or any other state

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official responsible for the loss of his property. The named defendants are all immune from suit

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under the Eleventh Amendment because they are agencies of the State of California. Plaintiff will

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be provided an opportunity to amend the complaint to allege additional facts and identify

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responsible defendants.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the prior complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the prior complaint which are not alleged in the amended complaint

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are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if plaintiff

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amends the complaint, the Court cannot refer to the prior pleading in order to make plaintiff's

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amended complaint complete. See Local Rule 220. An amended complaint must be complete in

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itself without reference to any prior pleading. See id.

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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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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).
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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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

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2.

Plaintiff shall file a second amended complaint within 30 days of the date

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of service of this order.

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Dated: June 18, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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