Dawson v. United States Government et al

Filing 39

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/13/2018 DISMISSING 15 Amended Prisoner Civil Rights Complaint. Plaintiff is GRANTED 30 days from the date of service of this order to file a second amended complaint. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH DEAN DAWSON,

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No. 2:18-cv-0354 CKD P

Plaintiff,
v.

ORDER

UNITED STATES GIOVERNMENT, et
al.,
Defendants.

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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. Plaintiff’s amended complaint is before

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the court for screening pursuant to 28 U.S.C. § 1915A(a).

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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 reviewed plaintiff’s amended complaint and finds that it does not state a

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claim upon which relief can be granted. Parts of the amended complaint are either difficult or

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impossible to decipher due to plaintiff’s handwriting. The parts of the amended complaint that
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the court can decipher are generally confusing or not relevant to stating a claim upon which

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plaintiff might proceed. For these reasons, the amended complaint will be dismissed. The court

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will give plaintiff one final opportunity to articulate a claim upon which he many proceed.

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Plaintiff is informed again that in order to state a claim upon which he may proceed he

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must point to facts indicating the conditions complained of have resulted in a deprivation of

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plaintiff’s federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.

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1980). Also, the second amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of

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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982).

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Again, plaintiff is informed 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 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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Finally, if plaintiff chooses to hand write his second amended complaint, it must be

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legible. Further, the second amended complaint must be written in plain terms, and it shall not

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include any information not essential to plaintiff’s articulation of his claim.

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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. 15) 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; the second amended complaint must bear the docket number assigned this

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case and must be labeled “Second Amended Complaint”; failure to file a second amended

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complaint in accordance with this order will result in a recommendation that this action be

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dismissed.

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Dated: November 13, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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daws0354.14(2)

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