(PC) Latu v. Mc Fadden

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 SAMUEL LATU, No. 2:20-CV-1518-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 R. McFADDEN, et al., 15 Defendants. [16] 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to [18] 42 U.S.C. § 1983 . Pending before the Court is Plaintiff’s complaint, ECF No. 1. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. [6] 7 I. PLAINTIFF’S ALLEGATIONS 8 Plaintiff names the following as defendants: (1) R. McFadden, Correctional 9 Counselor at Mule Creek State Prison; and (2) B. Holmes, Chief Deputy Warden at Mule Creek 10 State Prison. See ECF No. 1, pg. 2. Plaintiff states: 11 Plaintiff Samuel Latu is a protected class of prisoner and as such has a right to the protections of said class under the agreement he signed 12 with the CDCR. Plaintiff signed a long list of agreements as well as an agreement to be placed in a protective custody setting. Now, due to the 13 CDCRs need to force prisoners into “non-designated housing,” plaintiff is being made to house with prisoners well known to assault “P.C. inmates” 14 as well as anyone with any type of sexual offense. Plaintiff opposes said housing and seeks relief from this court so as to not be put in a knowingly 15 dangerous situation. 16 Id. at 3. 17 Plaintiff states he was convicted of a “sexual offense.” Id. at 4. The complaint does not contain 18 any allegations specific to either named defendant. [19] 20 II. DISCUSSION 21 The Court finds Plaintiff’s complaint to be defective because he has failed to 22 allege a link between any named defendant and an alleged constitutional violation. To state a 23 claim under 42 U.S.C. § 1983 , the plaintiff must allege an actual connection or link between the 24 actions of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social 25 Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another 26 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative 27 act, participates in another's affirmative acts, or omits to perform an act which he is legally 28 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 1 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of 2 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 3 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each 4 individual defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, [5] 844 F.2d 628, 634 (9th Cir. 1988). 6 Plaintiff will be provided an opportunity to amend in order to set forth factual 7 allegations specific to Defendants McFadden and Holmes. [8] 9 III. CONCLUSION 10 Because it is possible that the deficiencies identified in this order may be cured by 11 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 12 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 13 informed that, as a general rule, an amended complaint supersedes the original complaint. See 14 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 15 amend, all claims alleged in the original complaint which are not alleged in the amended 16 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 17 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 18 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 19 complete in itself without reference to any prior pleading. See id. 20 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 21 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 22 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 23 each named defendant is involved, and must set forth some affirmative link or connection 24 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 25 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 26 / / / 27 / / / 28 / / / 1 Finally, Plaintiff is warned that failure to file an amended complaint within the 2 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 3 | 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 4 | with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 5 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff's complaint is dismissed with leave to amend; and 8 2. Plaintiff shall file a first amended complaint within 30 days of the date of 9 | service of this order. [11] 12 | Dated: November 23, 2020 Ssvcqo_ 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE