Harrison v. Flores et al

Filing 14

ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/22/17 ordering plaintiff's amended complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL HARRISON, 12 No. 2:16-cv-1130 MCE CKD P Plaintiff, 13 v. 14 FLORES, et al., 15 ORDER Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court 19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s amended complaint is now 20 before the court. 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 1 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 3 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 4 Cir. 1989); Franklin, 745 F.2d at 1227. 5 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 6 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 7 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 8 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 9 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 10 this standard, the court must accept as true the allegations of the complaint in question, Hospital 11 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 12 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 13 McKeithen, 395 U.S. 411, 421 (1969). 14 The court finds that plaintiff’s amended complaint fails to state a claim upon which relief 15 can be granted. The amended complaint must be dismissed, but plaintiff will be given an 16 opportunity to cure the deficiencies in his pleadings in a second amended complaint. 17 If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how 18 the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or 19 statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff asserts he has been 20 subjected to harmful conditions of confinement. Plaintiff is informed that the Eighth 21 Amendment’s prohibition of cruel and unusual punishment imposes on prison officials, among 22 other things, a duty to “take reasonable measures to guarantee the safety of the inmates.” Farmer 23 v. Brennan, 511 U.S. 825, 832 (1991). An inmate’s Eighth Amendment rights can only be 24 violated by a prison official if that official exposes an inmate to a “substantial risk of serious 25 harm,” while displaying “deliberate indifference” to that risk. Id. at 834. 26 Also, the second amended complaint must allege in specific terms how each named 27 defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some 28 affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo 2 1 v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official 2 participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 3 268 (9th Cir. 1982). 4 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 5 make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 6 complaint be complete in itself without reference to any prior pleading. This is because, as a 7 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 8 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the original 9 pleading no longer serves any function in the case. Therefore, in a second amended complaint, as 10 in an original complaint, each claim and the involvement of each defendant must be sufficiently 11 alleged. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s amended complaint is dismissed; and 14 2. Plaintiff is granted thirty days from the date of service of this order to file a second 15 amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 16 of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the 17 docket number assigned this case and must be labeled “Second Amended Complaint;” failure to 18 file a second amended complaint in accordance with this order will result in a recommendation 19 that this action be dismissed. 20 Dated: March 22, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 1 harr1130.14(a) 27 28 3

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