Rogers v. Butte County Jail

Filing 17

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/6/2017 GRANTING Plaintiff's Motions to Proceed IFP and GRANTING Plaintiff 30 days to file a second amended complaint. If plaintiff does not file a second amended complaint within 30 day s, this action will proceed on plaintiff's 8th Amendment claim against defendant Hill. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the order to the Sheriff of Butte County filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNNY WAYNE ROGERS,

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Plaintiff,

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No. 2:16-cv-1914 CKD P

v.

ORDER

BUTTE COUNTY JAIL,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1) and plaintiff has consented to have all matters in this action before a United States

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Magistrate Judge. See 28 U.S.C. § 636(c).
Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a

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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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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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Plaintiff filed his original complaint on August 12, 2016 and then filed an amended complaint on

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August 25, 2016. Good cause appearing, the court will screen the amended complaint.

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Having conducted the required screening, the court finds that plaintiff’s amended

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complaint states a claim upon which relief could be granted under the Eighth Amendment against

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defendant Hill with respect to plaintiff’s allegations that Hill ignored plaintiff’s pleas to be

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housed separately from inmate Weaver.

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Plaintiff also identifies the Butte County Jail and Sheriff Kory Honea as defendants. A

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municipality, or a department thereof, can be liable under § 1983 when an injury occurs pursuant

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to execution of a custom or policy of the municipality. Monell v. Dep’t of Soc. Services of

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N.Y.C., 436 U.S. 658, 694 (1978). Plaintiff fails to allege any facts which reasonably suggest it

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was a specific policy or custom of the Butte County Jail that caused him injury. As for Sheriff

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Honea, plaintiff fails to point to any facts indicating he had any involvement in any of the matters

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alleged in plaintiff’s complaint. It appears plaintiff names Sheriff Honea as a defendant simply

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because he is in charge of the Butte County Jail. However, there can be no liability under 42

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U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions

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and the claimed deprivation, Rizzo v. Goode, 423 U.S. 362 (1976), and vague allegations of

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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982).

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At this point, plaintiff has two options: 1) he may either proceed only on the claim

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identified above against defendant Hill; or 2) attempt to cure the deficiencies with respect to other

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claims in a second amended complaint.
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If plaintiff chooses to amend, plaintiff is informed that the court cannot refer to a prior

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pleading in order to make an amended pleading complete. Local Rule 220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is because,

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as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay,

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375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading

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no 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 plaintiff is granted thirty

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days to file a second amended complaint that complies with the terms of this order. If plaintiff

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does not file a second amended complaint within 30 days, this action will proceed on plaintiff’s

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claim arising under the Eighth Amendment against defendant Hill.

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Dated: June 6, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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