Polk v. Gray et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/19/15 ORDERING that Plaintiff's motion for reconsideration and to amend the complaint (ECF No. 9 ) is granted; The Clerk of Court shall re-open this case; and Plaintiff is granted 30 days from the date of service of this order to file an amended complaint that complies with the requirements.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHERMAN MONROE POLK,

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No. 2:15-cv-0471 CKD P

Plaintiff,
v.

ORDER

DIANE GRAY, et al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se with an action pursuant to 42 U.S.C. § 1983.

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Plaintiff has consented to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c) and Local Rule

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302. Before the court is plaintiff’s motion for reconsideration of the April 22, 2015 order

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dismissing this action as duplicative of plaintiff’s pending action in the Northern District of

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California. (ECF No. 9.)

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A district court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e)

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or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th

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Cir. 1993). “Reconsideration is appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law.” Id. at 1263.

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In his complaint, plaintiff names three defendants: Stockton Parole Supervisor Diane

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Gray, Stockton Parole Agent Roy Lacy, and the Stockton Department of Justice. (ECF No. 1.)

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Plaintiff argues that his claims against Gray and Lacy are not pending in the Northern District,

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because – though they were originally brought in that action – they were dismissed without

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prejudice for improper venue. (ECF No. 9.)

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In support, plaintiff has submitted a February 4, 2015 judicial order in the action Polk v.

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Todd, No. 14-cv-4375 KAW (N.D. Cal.). The order indicates that, while Gray and Lacy were

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dismissed from that action with prejudice in November 2014 (see ECF No. 1 at 38), the order was

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subsequently vacated, and on February 4, 2015 they were dismissed “without prejudice to refiling

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a complaint against them in the proper venue.” (ECF No. 9 at 5-7.) As the events giving rise to

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the claims occurred in Stockton, California, venue was determined to be proper in the Eastern

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District of California. (Id.) Accordingly, the court will grant plaintiff’s motion for

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reconsideration.

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Plaintiff has also requested leave to file an amended complaint. (ECF No. 9.) In an

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

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in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.

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1980). Also, the complaint must allege in specific terms how each named defendant is involved.

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

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

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362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in

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civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.

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

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1. Plaintiff’s motion for reconsideration and to amend the complaint (ECF No. 9) is

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granted;

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2. The Clerk of Court shall re-open this case; and

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

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint. In the alternative, plaintiff may inform the court that he

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wishes to proceed on the complaint filed March 2, 2015, which the court will proceed to screen

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pursuant to 28 U.S.C. § 1915A(a).

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Dated: May 19, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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