(PC) Arzaga v. Santiago et al, No. 2:2018cv00313 - Document 15 (E.D. Cal. 2018)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 12/18/2018 VACATING the 11 findings and recommendations filed 11/14/2018 and DISMISSING plaintiff's complaint. Within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL JESUS ARZAGA, 12 13 14 No. 2:18-cv-0313 KJM KJN P Plaintiff, v. ORDER E. SANTIAGO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 14, 2018, the undersigned recommended that this action be dismissed as 21 legally frivolous. Plaintiff filed timely objections in which he argues that because his allegations 22 remain “possible” they are not fanciful and should not be dismissed as legally frivolous. Plaintiff 23 contends that he “re-grouped, and fixed his complaint,” and narrowed the parties and claims 24 raised in the instant pleading, including not asking for a “crazy sum of money.” (ECF No. 14 at 25 2.) Plaintiff seeks $1,200,000 in compensatory damages, and $1,500,000 in punitive damages. 26 (ECF No. 1 at 5.) 27 28 To make the determination under 28 U.S.C. § 1915(e)(2)(B), courts assess whether there is an arguable factual and legal basis for the asserted wrong, “however inartfully pleaded.” 1 Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Courts have the authority to 2 dismiss complaints founded on “wholly fanciful” factual allegations for lack of subject matter 3 jurisdiction. Id. at 1228. A court can also dismiss a complaint where it is based solely on 4 conclusory statements, naked assertions without any factual basis, or allegations that are not 5 plausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); see also Erickson v. 6 Pardus, 551 U.S. 89 (2007) (per curiam). 7 Plaintiff is informed that even if his claims are “possible,” he is required, under Iqbal, to 8 show such allegations are plausible on their face. Upon reconsideration, and in an abundance of 9 caution, the findings and recommendations are vacated, and plaintiff is granted thirty days in 10 which to file an amended complaint. Plaintiff must explain how his allegations are factually 11 plausible in the prison setting at California Health Care Facility. 12 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 13 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 14 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 15 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 16 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 17 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 18 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, 19 vague and conclusory allegations of official participation in civil rights violations are not 20 sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 22 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 23 complaint be complete in itself without reference to any prior pleading. This requirement exists 24 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 25 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 26 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 27 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 28 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 2 1 and the involvement of each defendant must be sufficiently alleged. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations filed November 14, 2018 (ECF No. 11) are 4 vacated; 5 2. Plaintiff’s complaint is dismissed; 6 3. Within thirty days from the date of this order, plaintiff shall complete the attached 7 Notice of Amendment and submit the following documents to the court: 8 a. The completed Notice of Amendment; and 9 b. An original and one copy of the Amended Complaint. 10 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 11 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 12 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 13 Failure to file an amended complaint in accordance with this order will result in the 14 dismissal of this action. 15 Dated: December 18, 2018 16 17 /arza0313.14 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL JESUS ARZAGA, 12 13 14 No. 2:18-cv-0313 KJM KJN P Plaintiff, v. NOTICE OF AMENDMENT E. SANTIAGO, et al., 15 Defendants. 16 17 18 Plaintiff hereby submits the following document in compliance with the court's order filed______________. _____________ 19 20 21 22 Amended Complaint DATED: ________________________________ Plaintiff 23 24 25 26 27 28 1