Arzaga v. Santiago et al

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 12/18/2018 VACATING the 11 findings and recommendations filed 11/14/2018 and DISMISSING plaintiff's complaint. Within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL JESUS ARZAGA,

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No. 2:18-cv-0313 KJM KJN P

Plaintiff,
v.

ORDER

E. SANTIAGO, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On November 14, 2018, the undersigned recommended that this action be dismissed as

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legally frivolous. Plaintiff filed timely objections in which he argues that because his allegations

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remain “possible” they are not fanciful and should not be dismissed as legally frivolous. Plaintiff

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contends that he “re-grouped, and fixed his complaint,” and narrowed the parties and claims

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raised in the instant pleading, including not asking for a “crazy sum of money.” (ECF No. 14 at

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2.) Plaintiff seeks $1,200,000 in compensatory damages, and $1,500,000 in punitive damages.

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(ECF No. 1 at 5.)

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To make the determination under 28 U.S.C. § 1915(e)(2)(B), courts assess whether there
is an arguable factual and legal basis for the asserted wrong, “however inartfully pleaded.”

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Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Courts have the authority to

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dismiss complaints founded on “wholly fanciful” factual allegations for lack of subject matter

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jurisdiction. Id. at 1228. A court can also dismiss a complaint where it is based solely on

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conclusory statements, naked assertions without any factual basis, or allegations that are not

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plausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); see also Erickson v.

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Pardus, 551 U.S. 89 (2007) (per curiam).

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Plaintiff is informed that even if his claims are “possible,” he is required, under Iqbal, to

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show such allegations are plausible on their face. Upon reconsideration, and in an abundance of

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caution, the findings and recommendations are vacated, and plaintiff is granted thirty days in

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which to file an amended complaint. Plaintiff must explain how his allegations are factually

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plausible in the prison setting at California Health Care Facility.

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

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g.,

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West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how

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each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). 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, 423 U.S. at 371; May v. Enomoto, 633

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F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,

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

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sufficient. Ivey v. Bd. 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 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 requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez

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v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint

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supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation

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omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any

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function in the case. Therefore, in an amended complaint, as in an original complaint, each claim
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and the involvement of each defendant must be sufficiently alleged.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed November 14, 2018 (ECF No. 11) are

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vacated;

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2. Plaintiff’s complaint is dismissed;

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3. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order will result in the

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dismissal of this action.

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Dated: December 18, 2018

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/arza0313.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL JESUS ARZAGA,

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No. 2:18-cv-0313 KJM KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

E. SANTIAGO, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
_____________

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Amended Complaint

DATED:
________________________________
Plaintiff

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