The opinion of the court was delivered by: Edward F. Shea Senior United States District Judge
ORDER DISMISSING SECOND AMENDED COMPLAINT
Plaintiff's initial complaint was filed on October 17, 2008. ECF No. 1. On March 27, 2008, the Court dismissed this action without prejudice because Plaintiff failed to submit a certified prison trust account statement, as required by 28 U.S.C. § 1915(a)(2), within sixty
(60) days of filing his Complaint. ECF No. 15. Plaintiff belatedly complied and, on January 8, 2010, he moved for reconsideration of the dismissal order and judgment. The Court granted his motion, vacated the judgment, and reopened the case. ECF No. 20. On May 30, 2012, after nearly two years of inactivity in the case, the Court directed Plaintiff to submit a status update indicating whether he wished to pursue his claims. ECF No. 24. Plaintiff indicated he wished to pursue his claims and sought leave to file an amended complaint, which the Court granted. ECF No. 27. On August 27, 2012, Plaintiff submitted his Second Amended Complaint. ECF No. 28. The Second Amended Complaint is now before the Court for screening pursuant to 28 U.S.C. § 1915A. For the reasons stated herein, Plaintiff's present allegations fail to state a claim upon which relief can be granted.
A.Prison Litigation Reform Act
Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. §§ 1915A(b)(1)-(2), 1915(e)(2); see also Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998).
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. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint, or portion thereof, will be dismissed for failure to state a claim upon which relief may be granted if it appears the "[f]actual allegations . . . [fail to] raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Failure to present enough facts to state a claim to relief that is plausible on the face of the complaint will subject that complaint to dismissal. Id. at 570. The Court must construe the pleading in a light most favorable to Plaintiff, and resolve all doubts in Plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
An amended complaint entirely supercedes the original complaint, and must therefore be complete in itself without reference to the prior or superceded pleading. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, all defendants or causes of action alleged in a prior complaint "which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. The Court will therefore only consider the material presented in Plaintiff's Second Amended Complaint, ECF No. 28.
Section 1983 requires a claimant to prove that (1) a person acting under color of state law (2) committed an act that deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). A person deprives another "of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that 'causes' the deprivation of which [the plaintiff complains]." Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) (alteration in original), cert. denied, 502 U.S. 1074 (1992); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
A complaint must set forth the specific facts upon which the plaintiff relies in claiming the liability of each defendant. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Even a liberal interpretation of a civil rights complaint may not supply essential elements of a claim that the plaintiff failed to plead. Id. at 268. To establish liability pursuant to § 1983, Plaintiff must set forth facts demonstrating how each Defendant caused or personally participated in causing a deprivation of Plaintiff's protected rights. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff must present a causal connection between named defendants and the conduct of which he complains. See Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992).
On March 9, 2001, Plaintiff appeared before Judge Michael Virga of the Sacramento County Superior Court for sentencing following his conviction by jury trial for burglary and receiving stolen property. Plaintiff was sentenced to a total of six years imprisonment on the substantive counts, and he also received three consecutive one-year sentence enhancements for three prior criminal convictions. Because one of those prior convictions was for escaping from custody ---custody imposed for one of his other prior convictions -- the trial court was undecided whether the escape-from-custody conviction counted as a "separately served" conviction under California Penal Code § 667.5(b) for purposes of receiving a one-year enhancement. The trial court stayed the one-year enhancement for his escape-from-custody conviction, resulting in a total sentence of eight years. The Third District Court of Appeal modified the judgment by striking the one-year stayed enhancement for the escape-from-custody conviction; otherwise, the appellate court affirmed in all respects.
In a published opinion, the Supreme Court of California concluded that Plaintiff's escape-from-custody conviction qualified as a separately-served prison term within the meaning of § 667.5(b). People v. Langston, 33 Cal. 4th 1237, 1241 (2004). The supreme court concluded that the appellate court erred in striking the enhancement, and it remanded for imposition of the one-year enhancement. Id. at 1246. The appellate court remanded to the trial court, Judge Virga, for resentencing. By way of remitter issued on March 8, 2005, the appellate court instructed Judge Virga to impose the additional one-year enhancement for the escape from custody conviction. Resentencing Tr. of 5/13/05, People v. Langston, No. 00F09092 (Sac. Cnty. Super. Ct.), Ex. I to Second Am. Compl., ECF No. 28, at 61-63.
On February 16, 2005, after the California Supreme Court issued its opinion but prior to the issuance of the remittur or the resentencing hearing, Plaintiff became eligible for parole on his original sentence. Although the Sacramento District Attorney's (D.A.) office apparently attempted to have Plaintiff held in custody, and although Judge Virga ordered the Department of Corrections to detain Plaintiff pending the resentencing hearing, Plaintiff was inadvertently released from custody and placed on parole.
Plaintiff's contentions are not entirely clear, but he appears to believe that the California Supreme Court's order vacated his underlying conviction and that he was therefore entitled to be released outright, with no imposition of parole. Regardless, on April 5, 2005, while on parole, a warrant was issued for Plaintiff's arrest for violating parole conditions. He was arrested by officers of the Sacramento Police Department on May 3, 2005. On May 13, 2005, he was resentenced before Judge Virga to an additional year in custody as a result of the previously-stayed sentence enhancement. On June 3, 2005, while serving that new one-year sentence, Plaintiff appeared before the Board of Prison ...