Langston v. Roesser

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/30/17 ORDERING that Plaintiff's amended complaint (ECF No. 10 ) is DISMISSED; and Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON,

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No. 2:16-cv-2362 MCE CKD P

Plaintiff,
v.

ORDER

ROESSER,
Defendant.

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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On December 8, 2016, plaintiff’s original

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complaint was dismissed with leave to amend, as plaintiff’s claim appeared to be barred by Heck

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v. Humphrey, 512 U.S. 477 (1994). (ECF No. 7.)

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Plaintiff’s first amended complaint (“FAC”) is now before the court for screening. See 28

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U.S.C. § 1915A(a). In the FAC, plaintiff indicates that his 2015 disciplinary conviction for

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Obstructing A Peace Officer was vacated, and the disciplinary charge was subsequently reheard

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and dismissed. (ECF No. 10.) If so, any federal challenge concerning the 2015 disciplinary

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conviction would not be Heck-barred.

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However, plaintiff does not state a First Amendment retaliation claim against defendant
Roesser, who in 2015 issued plaintiff a Rules Violation Report (RVR) for refusing to share a cell
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with a particular inmate. To establish a claim for retaliation, a prisoner must show that a prison

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official took some adverse action against an inmate because of that prisoner’s protected conduct,

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that the action chilled the inmate’s exercise of his constitutional rights, and the action did not

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advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.

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2005). Plaintiff does not explain what “protected conduct” led to Roesser’s alleged retaliation, or

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why Roesser’s action did not advance a legitimate correctional goal.

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The FAC fails to state a cognizable claim and will be dismissed. The court will, however,
grant leave to file a second amended complaint.
If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

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the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or

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statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended

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complaint must allege in specific terms how each named defendant is involved. There can be no

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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978). Furthermore, vague and conclusory allegations of official participation in civil rights

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violations are not sufficient. Ivey v. Board of 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 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 (ECF No. 10) 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 the Civil Rights Act, the Federal Rules

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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff

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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: January 30, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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