(PC) Payne v. Lozano ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD J. PAYNE, No. 2:19-cv-2595 KJN P 12 Plaintiff, 13 v. ORDER 14 JARED D. LAZANO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Plaintiff seeks relief 18 pursuant to 42 U.S.C. § 1983. On February 20, 2020, plaintiff’s amended complaint was 19 dismissed because plaintiff joined unrelated claims, and plaintiff was granted leave to amend. On 20 March 23, 2020, plaintiff filed a second amended complaint in which it appears he chooses to 21 pursue his due process claim against Dr. Tucci. However, plaintiff included the warden in the 22 caption and defendants’ section of his amended pleading, despite the court’s prior finding that 23 plaintiff’s claim against the warden is unrelated to his due process claim against Dr. Tucci. (ECF 24 No. 8 at 4.) Moreover, in his second amended complaint, plaintiff includes no charging 25 allegations as to either the warden or Dr. Tucci. Indeed, plaintiff does not provide as much 26 factual allegations as he included in his original complaint. (See ECF No. 1 at 4.) 27 Because plaintiff is required to include charging allegations as to each named defendant, 28 his pleading must again be dismissed. However, in order to assist plaintiff in filing his amended 1 pleading, the court will provide plaintiff with a copy of page four of his original complaint in 2 which plaintiff provides the factual allegations as to his due process claim against Dr. Tucci. 3 Plaintiff may choose to simply insert his prior page four into his third amended complaint. If 4 plaintiff intended to name the warden as a defendant in connection with plaintiff’s due process 5 claim against Dr. Tucci, plaintiff must include charging allegations demonstrating that the warden 6 was involved in the hearing plaintiff is challenging.1 7 If plaintiff chooses to amend, plaintiff must demonstrate how the conditions about which 8 he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., West v. 9 Atkins, 487 U.S. 42, 48 (1988). Also, the third amended complaint must allege in specific terms 10 how each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). Specifically, 11 plaintiff must include factual allegations as to each individual named as a defendant. Moreover, 12 there can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 13 connection between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; 14 May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). In other words, plaintiff cannot name the 15 warden as a defendant based solely on his role as warden. Vague and conclusory allegations of 16 official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 17 266, 268 (9th Cir. 1982). 18 Plaintiff may not change the nature of this suit by alleging new, unrelated claims.2 See 19 Fed. R. Civ. P. 20(a)(2). Continued violation of court orders may result in the involuntary 20 dismissal of this action. Fed. R. Civ. P. 41(b). 21 1 To state a § 1983 claim, plaintiff must allege: (1) the violation of a federal constitutional or 22 statutory right; and (2) that the violation was committed by a person acting under the color of 23 state law. See West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant’s personal involvement in the 24 constitutional deprivation or a causal connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). 25 Plaintiff may not sue any official on the theory that the official is liable for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 26 27 2 If plaintiff chooses to again name the warden as a defendant, plaintiff should review the court’s prior explanation of the rules governing proper joinder of claims and parties. (ECF No. 8 at 4, 8 28 n.2.) Plaintiff must allege specific facts demonstrating proper joinder. Fed. R. Civ. P. 20(a)(2). 1 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 2 make plaintiff’s third amended complaint complete. For example, because plaintiff failed to 3 identify Dr. Tucci as the defendant who allegedly violated plaintiff’s rights during the February 4 25, 2019 hearing, plaintiff was required to amend his pleading again. An amended complaint 5 must be complete in itself without reference to any prior pleading. L.R. 220. Such requirement 6 exists because, as a general rule, an amended complaint supersedes the original complaint. See 7 Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended 8 complaint supersedes the original, the latter being treated thereafter as non-existent.’” (internal 9 citation omitted)). Once plaintiff files a third amended complaint, the prior amended complaint 10 no longer serves any function in the case. Therefore, in the third amended complaint, as in an 11 original complaint, each claim and the involvement of each defendant must be sufficiently 12 alleged. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s second amended complaint (ECF No. 11) is dismissed. 15 2. Within sixty days from the date of this order, plaintiff shall complete the attached 16 Notice of Amendment and submit the following documents to the court: 17 a. The completed Notice of Amendment; and 18 b. An original and one copy of the Third Amended Complaint. 19 Plaintiff’s third amended complaint shall comply with the requirements of the Civil Rights Act, 20 the Federal Rules of Civil Procedure, the Local Rules of Practice, and all court orders. The third 21 amended complaint must also bear the docket number assigned to this case and must be labeled 22 “Third Amended Complaint.” 23 Failure to file a third amended complaint in accordance with this order may result in the 24 dismissal of this action. 25 //// 26 //// 27 //// 28 //// 1 3. The Clerk of the Court is directed to send plaintiff a copy of page four of plaintiff's 2 | original complaint (ECF No. 1 at 4), without the court’s banner; and the court’s form for filing a 3 | civil rights complaint under 42 U.S.C. § 1983 by a prisoner. 4 | Dated: March 27, 2020 Foci) Aharon 6 KENDALL J. NE , /payn2595.14b UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GERALD J. PAYNE, No. 2:19-cv-2595 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 JARED D. LOZANO, et al., 14 Defendants. 15 16 Plaintiff hereby submits the following document in compliance with the court's order 17 filed______________. 18 _____________ Third Amended Complaint DATED: 19 20 ________________________________ Plaintiff 21 22 23 24 25 26 27 28