(PC) Adams v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ADAMS, No. 2:20-cv-1902 CKD P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil action. This proceeding was 18 referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and plaintiff has 19 consented to have all matters in this action before a United States Magistrate Judge. See 28 20 U.S.C. § 636(c). 21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 ///// 1 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 2 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 Having conducted the required screening, the court finds that plaintiff may proceed on the 9 following claims: 10 1. A claim arising under the Eighth Amendment against defendants Coder and Clays for 11 failure to protect plaintiff from violence. 12 2. A claim arising under the First Amendment against defendant Jones for retaliating 13 against plaintiff for protected conduct. 14 At this point, plaintiff has two options: 1) proceed on the claims identified above; or 2) 15 attempt to cure the deficiencies in plaintiff’s complaint in an amended complaint. In considering 16 whether to amend, the court advises plaintiff as follows: 17 1. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 18 or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 19 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official participation in civil 20 rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 2. Prisoners do not have “a separate constitutional entitlement to a specific prison 22 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. 23 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Accordingly, the prison grievance procedure does 24 not confer any substantive constitutional rights upon inmates and actions in reviewing and 25 denying inmate appeals generally do not serve as a basis for liability under section 1983. Id. 26 3. The United States Supreme Court has held that “an unauthorized intentional 27 deprivation of property by a state employee does not constitute a violation of the procedural 28 requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful 1 | postdeprivation remedy for the loss is available” as it is in California. Hudson v. Palmer, 468 2 | U.S. 517, 533 (1984). 3 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 4 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 5 | complaint be complete in itself without reference to any prior pleading. This is because, as a 6 | general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 7 | F.2d 55, 57 (th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 8 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 9 | complaint, each claim and the involvement of each defendant must be sufficiently alleged. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 13 | shall be collected and paid in accordance with this court’s order to the Director of the California 14 | Department of Corrections and Rehabilitation filed concurrently herewith. 15 3. Plaintiff is granted 21 days within which to complete and return the attached form 16 | notifying the court whether he wants to proceed on the claims described in this order or whether 17 | he wishes to file an amended complaint in an attempt to cure the deficiencies in his original 18 | complaint. If plaintiff does not return the form, this action will proceed on the claims described 19 | above. 20 | Dated: February 12, 2021 i; dp. | bie 21 CAROLYN K DELANEY 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 | 1 6 adam 1902.op 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ADAMS, No. 2:20-cv-1902 CKD P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE OF 14 PATRICK COVELLO, et al., HOW TO PROCEED 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on the following claims: 19 1. A claim arising under the Eighth Amendment against defendants Coder and Clays for 20 failure to protect plaintiff from violence. 21 2. A claim arising under the First Amendment against defendant Jones for retaliating 22 against plaintiff for protected conduct. 23 _____ Plaintiff wants time to file an amended complaint. 24 DATED: 25 26 27 Plaintiff 28