Witkin v. M. et al.

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 02/24/16 vacating 8 FINDINGS AND RECOMMENDATIONS. The original complaint in this action is dismissed for failure to state a claim; and plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL AARON WITKIN,

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No. 2:15-cv-2493 KJM CKD P

Plaintiff,

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v.

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KEVIN M., et al.,

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ORDER

Defendants.

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On January 29, 2016, the undersigned issued findings and a recommendation that this

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action be dismissed for failure to state a claim. (ECF No. 8.) Plaintiff has filed objections,

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asserting that he can state a cognizable claim against defendants if given leave to amend. (ECF

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No. 12.) Good cause appearing, the undersigned will vacate its recommendation of dismissal and

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grant plaintiff an opportunity to amend the complaint.

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If plaintiff chooses to amend the complaint, he must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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

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

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is 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 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 recommendation of dismissal filed January 29, 2016 (ECF No. 8) is hereby

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vacated;

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2. The original complaint in this action is dismissed for failure to state a claim; 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; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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Dated: February 24, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/witk2493.amend

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