Clarke v. San Joaquin County Sheriff Department

Filing 12

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/1/2017 DISMISSING plaintiff's amended complaint. Plaintiff has 30 days to file a second amended complaint. Failure to file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAMUEL E. CLARKE,

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Plaintiff,

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No. 2:16-cv-1520 CKD P

v.

ORDER

SAN JOAQUIN COUNTY SHERIFF’S
DEPARTMENT,

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Defendant.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On August 15, 2016, the court screened plaintiff’s complaint as

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the court is required to do under 28 U.S.C. § 1915A(a). Plaintiff’s complaint was dismissed with

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leave to amend. Plaintiff filed his amended complaint on October 13, 2016 and now the amended

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complaint is before the court for screening.
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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When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 89,

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93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer

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v. Rhodes, 416 U.S. 232, 236 (1974).

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Plaintiff alleges a San Joaquin County Deputy Sheriff released an attack dog upon

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plaintiff which caused severe damage to plaintiff’s left arm. Plaintiff does not identify the officer

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who released the attack dog as a defendant. Rather, he sues the San Joaquin County Sherriff’s

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Department (SJCSD). As with his original complaint, plaintiff’s fails to make any allegations in

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his amended complaint suggesting the SJCSD is liable in any way for any injury suffered by

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plaintiff and the SJCSD cannot be liable simply because one of their employees is. Monell v.

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Dep’t of Soc. Services of City of N.Y., 436 U.S. 658, 691 (1978).

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For these reasons, plaintiff’s amended complaint fails to state a claim upon which relief

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can be granted and must be dismissed. Good cause appearing, the court will give plaintiff one

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final opportunity to cure the deficiencies in his pleadings. In drafting his second amended

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complaint, plaintiff shall consider the contents of this order as well as the contents of the court’s

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original August 15, 2016 screening order.

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Plaintiff is specifically reminded 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 prior pleading

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no longer serves any function in this case. Therefore, in a second amended complaint, each claim

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

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Complaint.”

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3. Failure to file a second amended complaint in accordance with this order will result in

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a recommendation that this action be dismissed.

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Dated: February 1, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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