Candler v. Stewart et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/9/2018 GRANTING 2 and 8 Motions to Proceed IFP and GRANTING Plaintiff 30 days to file an amended complaint that complies with this order. Plaintiff to pay the statutory filing fee of $350. All fees to be collected and paid in accordance with this court's order to the CDCR 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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KEITH CANDLER,

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Plaintiff,

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No. 2:17-cv-2436 TLN CKD P

v.

ORDER

J. STEWART, et al.,

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Defendants.

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Plaintiff is a California prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
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

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twenty percent of the preceding month’s income credited to plaintiff’s prison trust account and

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forward it to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00,

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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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The court has conducted the required screening and finds that plaintiff may proceed on the
following claims:

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1) Claims against defendant Lebeck for excessive force and denial of medical care arising
under the Eighth Amendment and a claim arising under the First Amendment for retaliating
against plaintiff for utilization of an inmate grievance procedure;

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2) Claim against defendant Huynh for denial of medical care arising under the Eighth
Amendment.

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With respect to defendant Reams, Hobart and Stewart, plaintiff’s complaint does not state
a claim upon which relief can be granted.

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At this point, plaintiff has two options: 1) he may proceed on the claims identified above;

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or 2) attempt to cure the deficiencies with respect to claims against defendants Reams, Hobart and

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Stewart.

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If plaintiff chooses to amend, plaintiff is informed as follows:

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1. In order to state a claim for damages, plaintiff must allege facts indicating a causal

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connection between the actions of a defendant and the injury sustained by plaintiff. See Barren v.

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Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998). Furthermore, a plaintiff must connect the

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named defendants clearly with the claimed denial of his rights. Farmer v. Brennan, 511 U.S. 825,

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837, 843 (1994) (official’s liability for deliberate indifference to assault requires that official

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know of and disregard an “excessive risk”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

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(“liability under section 1983 arises only upon a showing of personal participation by the

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defendant (citation omitted) . . . [t]here is no respondeat superior liability under section 1983.”).

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2. Section 1997(e)(a) of Title 42 of the United States Code provides that “[n]o action

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shall be brought with respect to prison conditions under section 1983 of this title, . . . until such

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administrative remedies as are available are exhausted.”

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make an

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amended pleading complete. Local Rule 220 requires that an amended complaint be complete in

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itself without reference to any prior pleading. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Once plaintiff files an amended complaint, the original pleading no longer serves any function in

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the case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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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 request for leave to proceed in forma pauperis (ECF No. 2 & 8) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff is granted thirty days to file an amended complaint that complies with the

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terms of this order. If plaintiff does not file an amended complaint within 30 days, this action

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will proceed on the claims described above against defendants Lebeck and Huynh, and the court

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will recommend that all other defendants be dismissed.

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Dated: March 9, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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cand2436.1ish

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