Turner v. Colon
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 11/14/11 ORDERING that Plaintiffs request for an extension of time to file a second amended complaint, 17 , is GRANTED; Plaintiff is granted 60 days to file a second amended complaint; there wil l be no further extension of time; The Clerk of the Court on this one occasion is directed to send plaintiff a copy of his five-page amended complaint, filed on November 24, 2010 at 11 ; and Plaintiffs requests for appointment of counsel, filed on September 26, 2011 16 and on October 27, 2011 18 are DENIED. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LEO B. TURNER, JR.,
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Plaintiff,
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vs.
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No. CIV S-11-2343 GGH P
R. COLON, et al.,
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Defendants.
ORDER
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This case was dismissed with prejudice in the Northern District for failure to state
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a claim upon which relief could be granted by order filed on October 12, 2010. However, on
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plaintiff’s motion for reconsideration, the court vacated the order of dismissal, re-opened the
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action and transferred it to the Eastern District by order, filed on August 31 2011. In so doing,
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the court noted that plaintiff had submitted a first amended complaint (filed as of November 24,
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2010), which the court found, on reconsideration and by liberally construing the allegations, to
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frame an Eighth Amendment claim for deliberate indifference to plaintiff’s safety. See order at
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docket # 12. However, the case was transferred to this court because the claims arose at Deuel
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Vocational Institution within San Joaquin County.
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Plaintiff now requests an extension of time of sixty days to file a second amended
complaint and a copy of his first amended complaint. Plaintiff states that he has additional
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information from his medical file to include and that he is currently “in the hole,” cannot get to
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the law library and has had all of his legal work stolen. The court will authorize the clerk to send
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plaintiff a copy of his five-page first amended complaint on this one occasion; in future,
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however, plaintiff will be required to submit the appropriate payment for copies to the clerk in
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advance.
Plaintiff will be granted leave to file a second amended complaint. In filing a
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further amended complaint, plaintiff must demonstrate how the conditions complained of have
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resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227
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(9th Cir. 1980). Also, the 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, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory
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allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board
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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
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order to make plaintiff’s second amended complaint complete. Local Rule 220 requires that an
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amended complaint be complete in itself without reference to any prior pleading. This is
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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original
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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an
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original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.
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Plaintiff has requested the appointment of counsel. The United States Supreme
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Court has ruled that district courts lack authority to require counsel to represent indigent
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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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certain exceptional circumstances, the court may request the voluntary assistance of counsel
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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court
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does not find the required exceptional circumstances because at this time plaintiff is being
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granted, at his request, further leave to amend leaving the court unable at this time to determine
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precisely what the circumstances of the action are and whether or not they could be characterized
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as exceptional. Plaintiff’s requests for the appointment of counsel will therefore be denied.
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Accordingly, IT IS ORDERED that:
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1. Plaintiff’s request for an extension of time to file a second amended complaint,
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filed on September 26, 2011 (docket # 17), is granted;
2. Plaintiff is granted sixty days to file a second amended complaint; there will be
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no further extension of time;
3. The Clerk of the Court on this one occasion is directed to send plaintiff a copy
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of his five-page amended complaint, filed on November 24, 2010 at docket # 11; and
4. Plaintiff’s requests for appointment of counsel, filed on September 26, 2011
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(docket # 16) and on October 27, 2011 (docket # 18), are denied.
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DATED: November 14, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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