Cheney v. County of Butte et al

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 2/14/2018 DISMISSING 1 Complaint with leave to amend. Plaintiff shall file a first amended complaint within 30 days of the this order. (Fabillaran, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LINDSAY CHENEY, JR.,

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No. 2:17-CV-0259-MCE-CMK

Plaintiff,
vs.

ORDER

COUNTY OF BUTTE, et al.,
Defendants.
/
Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and

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1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this court
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must dismiss an action if the court determines that it lacks subject matter jurisdiction. Because

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plaintiff, who is not a prisoner, has been granted leave to proceed in forma pauperis, the court

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will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h)(3), the court will also

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consider as a threshold matter whether it has subject-matter jurisdiction.

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While plaintiff’s 270-page complaint is not entirely clear, it appears that plaintiff

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is asserting various civil rights violations arising in the context of a criminal case against him in

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Butte County, Butte County Superior Court case no. SCR96290. Under Younger v. Harris, 401

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U.S. 37 (1971), federal courts are barred from hearing a civil rights claim arising from an

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ongoing state criminal prosecution. In certain circumstances, it may be appropriate to stay a

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federal civil rights action pending the outcome of the state criminal case. See Wallace v. Kato,

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127 S.Ct. 1091 (2007). Because it is unclear from plaintiff’s complaint whether his claims in

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fact arise from the Butte County Superior Court action, or whether that action is still pending, the

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court cannot on the current file determine whether to abstain pursuant to Younger. Plaintiff will

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be provided an opportunity to file an amended complaint to address this jurisdictional issue.

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Plaintiff is informed that, as a general rule, an amended complaint supersedes the

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original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,

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following dismissal with leave to amend, all claims alleged in the original complaint which are

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not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th

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Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior

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pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Federal Rule of Civil Procedure 8 may, in the court’s discretion, be dismissed with

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prejudice pursuant to Rule 41(b). See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673

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(9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file a first amended complaint within 30 days of the date of

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this order.

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DATED: February 14, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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