(PC) Graham v. Jaffe et al, No. 2:2008cv02533 - Document 19 (E.D. Cal. 2010)
Court Description: ORDER signed by Magistrate Judge Kimberly J. Mueller on 02/08/10 vacating 14 FINDINGS AND RECOMMENDATIONS. Plaintiff's amended complaint 16 is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint. (Plummer, M)
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(PC) Graham v. Jaffe et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY GRAHAM, Plaintiff, 11 12 vs. 13 No. CIV S-08-2533 GEB KJM P M. JAFFE, et al., Defendants. 14 ORDER / 15 Plaintiff is a state prisoner proceeding pro se with an action for violation of civil 16 17 rights under 42 U.S.C. § 1983. On July 24, 2009, the court recommended that this action be 18 dismissed for plaintiff’s failure to file an amended complaint. Plaintiff has now filed an 19 amended complaint. Therefore, the court’s recommendation that this action be dismissed will be 20 vacated. 21 The court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 24 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may 25 be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 26 U.S.C. § 1915A(b)(1),(2). 1 Dockets.Justia.com 1 In order to avoid dismissal for failure to state a claim a complaint must contain 2 more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements 3 of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other 4 words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a 6 claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. 7 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 8 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 9 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be 10 granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 11 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. 12 Rhodes, 416 U.S. 232, 236 (1974). 13 As it stands, plaintiff’s amended complaint fails to state a claim upon which relief 14 can be granted because the allegations are vague. The court will give plaintiff one final 15 opportunity to state a valid claim. 16 If plaintiff chooses to file a second amended complaint, plaintiff is reminded that 17 he must demonstrate how the conditions complained of have resulted in a deprivation of 18 plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). For example, 19 plaintiff appears to claim he has been retaliated against for filing staff complaints, but he fails to 20 indicate the nature of his complaints so that the court may discern whether plaintiff’s claims of 21 retaliation are anything more than conclusory. Plaintiff also claims that he has been denied 22 adequate medical care. But, plaintiff generally fails to bridge the gap between the actions of a 23 particular defendant and an injury suffered. Petitioner must show that an injury suffered is 24 attributable to a defendant or plaintiff has no valid cause of action. See Rizzo v. Goode, 423 25 U.S. 362 (1976) (there can be no liability under 42 U.S.C. § 1983 unless there is some 26 affirmative link or connection between a defendant’s actions and the claimed deprivation). 2 1 2 Plaintiff is again reminded that the court cannot refer to a prior pleading in order 3 to make plaintiff’s second amended complaint complete. Local Rule 15-220 requires that an 4 amended complaint be complete in itself without reference to any prior pleading. This is 5 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 6 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 7 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 8 original complaint In accordance with the above, IT IS HEREBY ORDERED that: 9 1. The court’s July 24, 2009 recommendation that this action be dismissed is 10 11 vacated. 12 2. Plaintiff's amended complaint is dismissed. 13 3. Plaintiff is granted thirty days from the date of service of this order to file a 14 second amended complaint that complies with this order, the requirements of the Civil Rights 15 Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended 16 complaint must bear the docket number assigned this case and must be labeled “Second 17 Amended Complaint”; plaintiff must file an original and two copies of the second amended 18 complaint; failure to file a second amended complaint in accordance with this order will result in 19 a recommendation that this action be dismissed. 20 DATED: February 8, 2010. 21 22 23 1 grah2533.14amd(8.20.09) 24 25 26 3
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