McDowell v. Fox et al

Filing 12

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/1/2017 DISMISSING plaintiff's amended complaint; and plaintiff shall file a second amended complaint within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENTHA MCDOWELL,

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No. 2:16-cv-2144 CKD P

Plaintiff,
v.

ORDER

ROBERT W. FOX, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks relief

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pursuant to 42 U.S.C. § 1983. On December 16, 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) and dismissed with leave to amend.

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Plaintiff has now filed an amended complaint.

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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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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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In his amended complaint, plaintiff again alleges he suffered injuries after being attacked

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by another inmate. However, the amended complaint fails to state a claim upon which relief can

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be granted because plaintiff fails to allege facts suggesting that any defendant is liable for

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plaintiff’s injuries. In order to state a claim under the Eighth Amendment for failure to protect an

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inmate from violence, plaintiff must allege facts indicating he suffered an injury as a result of a

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prison official’s deliberate indifference to a substantial risk of serious physical harm. Farmer v.

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Brennan, 511 U.S. 825, 834 (1994). In his amended complaint, as in his original, plaintiff fails to

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allege facts suggesting any injuries suffered by him were the result of any defendant being at least

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deliberately indifferent to a substantial risk of serious physical harm.

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For these reasons, plaintiff’s amended complaint must be dismissed. However, the court

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will grant plaintiff a second and final opportunity to amend in order to state a claim upon which

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relief could be granted.

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Plaintiff is reminded that if he chooses to file a second amended complaint, plaintiff must

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allege in specific terms how each named defendant is involved. There can be no liability under

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42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s
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actions and the claimed injuries. Rizzo v. Goode, 423 U.S. 362 (1976). For example, a warden

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of a prison is not liable for something simply because it happened at his or her prison. For the

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warden to be liable, he or she must have actually committed a violation of plaintiff’s rights.

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Again, vague and conclusory allegations of official participation in civil rights violations are not

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sufficient, Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982), and there is no vicarious

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liability in a § 1983 action. City of Canton, OH v. Harris, 489 U.S. 378, 385 (1989).

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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 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 original

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pleading no longer serves any function in the case. Therefore, in a second amended complaint, as

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in an original complaint, each claim and the involvement of each defendant must be sufficiently

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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; and

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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 complaint

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

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Complaint”; plaintiff must file an original and two copies of the second amended complaint;

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failure to file a second amended complaint in accordance with this order will result in a

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recommendation that this action be dismissed.

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Dated: June 1, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mcdo2144.14(2)

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