United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
a former county inmate, is proceeding without counsel and in
forma pauperis in an action brought under 42 U.S.C. §
1983. After a dismissal of his initial complaint pursuant to
28 U.S.C. § 1915A (ECF No. 4), he filed a first amended
complaint (ECF No. 14), and then requested further leave to
amend, which the court granted (ECF No. 15). His second
amended complaint (ECF No. 22) is now before the court for
screening pursuant to section 1915A. ECF No. 10.
mandates that district courts engage in a preliminary
screening of cases in which prisoners seek redress from a
governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). The court must identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint “is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, ” or “seeks monetary relief from a
defendant who is immune from such relief.” Id.
claims that his Fourth Amendment rights were violated on
January 2, 2014 at the Six Flags Discovery Kingdom Amusement
Park when Officer Messina Peppino of the Vallejo Police
Department approached him and charged him with petty theft.
ECF No. 22 at 5. The Fourth Amendment protects
against unreasonable searches and seizures. U.S. Const.
amend. IV. Plaintiff's claim cannot pass screening
because it fails to allege that any search or seizure even
occurred. See Terry v. Ohio, 392 U.S. 1, 16 (1968)
(“whenever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized'
that person.”). If Officer Peppino arrested or
otherwise detained plaintiff, plaintiff may so allege in a
third amended complaint. Plaintiff must also explain why the
arrest or detention was unreasonable under the circumstances.
See Id. at 9 (“[W]hat the Constitution forbids
is not all searches and seizures, but unreasonable
searches and seizures.” (emphasis added)). Moreover,
and as the court cautioned in its initial screening order
(ECF No. 4), private entities such as Six Flags Discovery
Kingdom generally cannot be sued under section 1983. See
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)
(“While generally not applicable to private parties, a
§ 1983 action can lie against a private party”
only if he is alleged to be “a willful participant in
joint action with the State or its agents.”) (citation
and quotation marks omitted). “The United States
Constitution protects individual rights only from
government action, not from private
action.” Single Moms, Inc. v. Mont. Power Co.,
331 F.3d 743, 746-47 (9th Cir. 2003).
Leave to Amend
these reasons, plaintiff's second amended complaint must
be dismissed with leave to amend. If plaintiff chooses to
file a third amended complaint it should observe the
amended complaint must identify as a defendant only persons
who personally participated in a substantial way in depriving
him of a federal constitutional right. Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person
subjects another to the deprivation of a constitutional right
if he does an act, participates in another's act or omits
to perform an act he is legally required to do that causes
the alleged deprivation). The complaint should also describe,
in sufficient detail, how each defendant personally violated
or participated in the violation of his rights. The court
will not infer the existence of allegations that have not
been explicitly set forth in the amended complaint.
amended complaint must contain a caption including the names
of all defendants. Fed.R.Civ.P. 10(a).
may not change the nature of this suit by alleging new,
unrelated claims. See George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007).
amended complaint must be written or typed so that it so that
it is complete in itself without reference to any earlier
filed complaint. ED. Cal. L.R. 220. This is because an
amended complaint supersedes any earlier filed complaint, and
once an amended complaint is filed, the earlier filed
complaint no longer serves any function in the case. See
Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997)
(the “‘amended complaint supersedes the original,
the latter being treated thereafter as
non-existent.'”) (quoting Loux v. Rhay,
375 F.2d 55, 57 (9th Cir. 1967)).
the court notes that any amended complaint should be as
concise as possible in fulfilling the above requirements.
Fed.R.Civ.P. 8(a). Plaintiff should avoid the inclusion of
procedural or factual background which has no bearing on his
it is hereby ORDERED that plaintiff s second amended
complaint (ECF No. 22) is dismissed with leave to amend
within 30 days of the date this order is served. Failure to