United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis.
He seeks relief pursuant to 42 U.S.C. § 1983. On
December 16, 2016, the court screened plaintiff's
complaint as the court is required to do under 28 U.S.C.
§ 1915A(a) and dismissed with leave to amend. Plaintiff
has now filed an amended complaint.
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. 28 U.S.C. §
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 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log
Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
In reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
amended complaint, plaintiff again alleges he suffered
injuries after being attacked by another inmate. However, the
amended complaint fails to state a claim upon which relief
can be granted because plaintiff fails to allege facts
suggesting that any defendant is liable for plaintiff's
injuries. In order to state a claim under the Eighth
Amendment for failure to protect an inmate from violence,
plaintiff must allege facts indicating he suffered an injury
as a result of a prison official's deliberate
indifference to a substantial risk of serious physical harm.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). In his
amended complaint, as in his original, plaintiff fails to
allege facts suggesting any injuries suffered by him were the
result of any defendant being at least deliberately
indifferent to a substantial risk of serious physical harm.
these reasons, plaintiff's amended complaint must be
dismissed. However, the court will grant plaintiff a second
and final opportunity to amend in order to state a claim upon
which relief could be granted.
is reminded that if he chooses to file a second amended
complaint, plaintiff must allege in specific terms how each
named defendant is involved. There can be no liability under
42 U.S.C. § 1983 unless there is some affirmative link
or connection between a defendant's actions and the
claimed injuries. Rizzo v. Goode, 423 U.S. 362
(1976). For example, a warden of a prison is not liable for
something simply because it happened at his or her prison.
For the warden to be liable, he or she must have actually
committed a violation of plaintiff s rights. Again, vague and
conclusory allegations of official participation in civil
rights violations are not sufficient, Ivey v. Board of
Regents, 673 F.2d 266, 268 (9th Cir. 1982), and there is
no vicarious liability in a § 1983 action. City of
Canton, OH v. Harris, 489 U.S. 378, 385 (1989).
addition, plaintiff is informed that the court cannot refer
to a prior pleading in order to make plaintiffs second
amended complaint complete. Local Rule 220 requires that an
amended complaint be complete in itself without reference to
any prior pleading. This is because, as a general rule, an
amended complaint supersedes the original complaint. See
Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once
plaintiff files a second amended complaint, the original
pleading no longer serves any function in the case.
Therefore, in a second amended complaint, as in an original
complaint, each claim and the involvement of each defendant
must be sufficiently alleged.
accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiffs amended complaint is dismissed; and
2. Plaintiff is granted thirty days from the date of service
of this order to file a second amended complaint that
complies with the requirements of this order, the Civil
Rights Act, the Federal Rules of Civil Procedure, and the
Local Rules of Practice; the second amended complaint must
bear the docket number assigned this case and must be labeled
“Second Amended Complaint”; plaintiff must file
an original and two copies of the second amended complaint;
failure to file ...