McClintock v. Cooper et al

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 3/12/2019 DISMISSING 11 Amended Complaint with leave to amend within 30 days. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN McCLINTOCK,

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Plaintiff,

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No. 2: 18-cv-0560 JAM KJN P

v.

ORDER

T. COOPER, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint. (ECF No. 11.)

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For the reasons stated herein, plaintiff’s amended complaint is dismissed with leave to amend.

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Plaintiff’s amended complaint does not clearly identify the defendants. While plaintiff

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includes a statement of his claims, it is not clear which individuals discussed in each claim are

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intended as defendants. For example, claim one discusses Sergeant Cooper, Wheeler, Armento, J.

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Cantu, L. Cantu, Warden Lizarraga, R. Barton, Joseph Talvan and Lieutenant McCloughain. It is

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not clear if plaintiff intends to name all of these individuals as defendants. For these reasons, the

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amended complaint is dismissed with leave to file a second amended complaint. The second

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amended complaint shall clearly list all named defendants and their involvement in each

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allegation against them.

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Plaintiff is also informed that the Civil Rights Act under which this action was filed
provides as follows:
Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative

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act, participates in another’s affirmative acts or omits to perform an act which he is legally

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required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient).

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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.
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Plaintiff’s amended complaint was not prepared on a complaint form. The undersigned

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will direct the Clerk of the Court to send plaintiff a complaint form. Plaintiff shall prepare his

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second amended complaint on the complaint form. The second amended complaint may be no

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longer than fifteen pages.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed with thirty days to file a second amended

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complaint; failure to file a second amended complaint within that time will result in a

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recommendation of dismissal of this action;

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2. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint;

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plaintiff shall prepare his second amended complaint on this form. The second amended

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complaint may be no longer than fifteen pages.

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Dated: March 12, 2019

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