The opinion of the court was delivered by: Barry M. Kurren United States Magistrate Judge
FINDING AND RECOMMENDATION THAT PLAINTIFF'S SECOND AMENDED COMPLAINT BE DISMISSED
On August 4, 2008, Plaintiff Jamie Arias-Maldonado ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a Second Amended Complaint pursuant to 42 U.S.C. § 1983. (Doc. #17.) The United States District Court for the Eastern District of California had previously dismissed Plaintiff's First Amended Complaint for failure to state a claim and granted Plaintiff leave to amend.*fn1 (Doc. #12.) Because Plaintiff's Second Amended Complaint does not cure the deficiencies identified in the dismissal order, the Court RECOMMENDS that Plaintiff's Second Amended Complaint and this action be DISMISSED. In addition, because further amendment is futile, the Court RECOMMENDS that such dismissal be without leave to amend, with prejudice, and count as a strike pursuant to 28 U.S.C. § 1915(g).
Plaintiff's Second Amended Complaint sets forth four causes of action. (Compl. at 2-6.) All four causes of action, however, can be reduced to the following complaints. First, Plaintiff complains about his involuntary transfer out of California. (Id. at 2-3, 4-6.) Plaintiff was initially housed at the California State Prison ("CSP") in Solano. (Id. at 2.) Plaintiff was later involuntary transferred to Tallahatchie County Correctional Facility in South Tutwiler, Mississippi. (Id.) Plaintiff appears to allege that said transfer was made on the basis of his race. (Id. at 5-6.) Since filing his Second Amended Complaint, however, Plaintiff has been returned to California and is currently being housed at California's Men Colony ("CMC") in San Luis Obispo. (Civ. No. 2:07-02506 MCE-EFB ("No. 2:07-02506"), Doc. # 17.)*fn2
Second, Plaintiff complains about an incident that occurred with law library staff member, Officer Boyden, on August 22, 2007. (Compl. at 2-4.) On that date, Boyden stopped Plaintiff as he was entering the law library to verify why he was not at his assigned job. (Ex. A at 1.) Plaintiff showed Boyden a written pass he had received from the building officer to go to the law library and Boyden permitted Plaintiff to enter. (Id.) Plaintiff claims that this incident is "direct evidence" of CSP's and Boyden's efforts to deny Plaintiff a right of access to the courts. (Compl. at 3.) According to Plaintiff, such denial impeded his ability to litigate another action,*fn3 resulting in that action's dismissal. (Id.)
Finally, Plaintiff complains about the processing of his grievances concerning his transfer out of California and the incident with Boyden. (Id. at 3-5.) As to the prior, Plaintiff claims that various named prison officials failed to adequately address his emergency appeals relating to his transfer. (Id. at 4-5.) As to the latter, Plaintiff alleges that following the incident, the warden failed to investigate the law library staff. (Id. at 3-4.)
The court is required to conduct a preliminary screening of any case in which a prisoner seeks relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. §§ 1915(e)(2), 1915A(b).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227 (quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976)).
The court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt. Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In giving such liberal interpretation, however, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
"Unless it is absolutely clear that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Should the plaintiff amend his complaint, the court may not refer to the prior pleading in order to make the plaintiff's amended complaint complete. As a general rule, an amended complaint supersedes the original complaint, "the latter being treated thereafter as non-existent." Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, each claim and the involvement of each defendant must be sufficiently alleged.
To state a claim under 42 U.S.C. § 1983, a plaintiff must show that 1) the conduct complained of was committed by a person acting under color of state law, and 2) that said conduct violated a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988).
As to the first requirement, Plaintiff's Second Amended Complaint names as a Defendant, the California Department of Corrections and Rehabilitation (the "CDCR"), among others. (Compl. at 1, 2.) However, neither states nor their agencies are persons under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). ...