Curley v. Baughman et al

Filing 16

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/11/2019 DISMISSING plaintiff's amended complaint with leave to 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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KEVIN CURLEY,

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No. 2:18-cv-0318 TLN CKD P

Plaintiff,
v.

ORDER

D. BAUGHMAN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding in forma pauperis with an action for violation of

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civil rights under 42 U.S.C. § 1983. On July 30, 2018, 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 the complaint with leave to

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amend. Plaintiff has now filed an amended complaint.

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Under 28 U.S.C. § 1915A(a), the court must dismiss a complaint or portion thereof if the

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prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2).

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In his amended complaint, plaintiff complains about deprivation of personal property, just

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as he did in his original complaint. The allegations are vague, despite the fact that plaintiff was

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informed in the court’s July 30, 2018 screening order that in order to state a claim upon which

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relief may granted, plaintiff must “demonstrate how the conditions complained of have resulted in
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a deprivation of plaintiff’s constitutional rights” and “allege in specific terms how each named

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defendant is involved.” Plaintiff has done neither. Also, as plaintiff was informed in the court’s

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July 30, 2018 order, “generally speaking, ‘an unauthorized intentional deprivation of property by

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a state employee’ does not constitute a violation federal law.” See Hudson v. Palmer, 468 U.S.

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517, 533 (1984).

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For these reasons, plaintiff has not stated a claim upon which relief can be granted in his

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amended complaint. Good cause appearing, the court will grant plaintiff one more opportunity to

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attempt to state a claim upon which relief can be granted in a second amended complaint. Before

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drafting his second amended complaint, plaintiff should refer back to the court’s July 30, 2018

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order for guidance. More generally, plaintiff must, at a minimum, describe what action has been

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taken against him, by whom, how he has been harmed as result of that action, and how that action

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amounts to a violation of federal law.

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

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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 an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the 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 amended complaint is dismissed.

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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.” Failure to

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

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that this action be dismissed.

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Dated: April 11, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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curl0318.14(2)

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