(PC) Wiltse v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DAVID WILTSE, No. 2:21-cv-0901 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). 19 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 20 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 21 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 22 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 23 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 24 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 25 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 26 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 27 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 28 ///// 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 Having conducted the required screening, the court finds that plaintiff may proceed on 7 claims 3-7 in his complaint, alleging violations of the Eighth Amendment. Plaintiff fails to state 8 actionable claims in claims 1 and 2. At this point, plaintiff has two options: 1) proceed on claims 9 3-7; or 2) attempt to cure the deficiencies in claims 1 and 2 in an amended complaint. In 10 considering whether to amend, the court advises plaintiff as follows: 11 1. With respect to claim 1, there can be no liability under 42 U.S.C. § 1983 unless there 12 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 13 Rizzo v. Goode, 423 U.S. 362 (1976). Vague and conclusory allegations of official participation 14 in civil rights violations, such as those against prison wardens simply because they are in charge 15 of their respective prisons, are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 16 Cir. 1982). 17 2. As for claim 2, plaintiff sues the California Department of Corrections and 18 Rehabilitation for damages based upon a violation of the Eighth Amendment. The Eleventh 19 Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state 20 agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 21 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 682 F.2d 22 1344, 1349-50 (9th Cir. 1982). The State of California has not consented to suit with respect to 23 claims arising under the Eighth Amendment for damages. 24 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 25 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 26 complaint be complete in itself without reference to any prior pleading. This is because, as a 27 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 28 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 1 | longer serves any function in the case. Therefore, in an amended complaint, as in an original 2 || complaint, each claim and the involvement of each defendant must be sufficiently alleged. 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 6 || shall be collected and paid in accordance with this court’s order to the Director of the California 7 || Department of Corrections and Rehabilitation filed concurrently herewith. 8 3. Plaintiff granted 21 days within which to complete and return the attached form 9 || notifying the court whether he wants to proceed on claims 3-7 in his complaint, or whether he 10 || wishes to file an amended complaint in an attempt to cure the deficiencies in claims | and 2. If 11 | plaintiff does not return the form, this action will proceed on claims 3-7. 12 || Dated: September 8, 2021 fi 20 } Kt | / , a he 13 CAROLYN K DELANEY 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 | 1 wilt0901.op 18 19 20 21 22 23 24 25 26 27 28 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 MICHAEL DAVID WILTSE, No. 2:21-cv-0901 CKD P 5 Plaintiff, 6 v. PLAINTIFF’S NOTICE OF 7 PATRICK COVELLO, et al., HOW TO PROCEED 8 Defendants. 9 10 Check one: 11 _____ Plaintiff wants to proceed immediately on claims 3-7 in his complaint; or 12 _____ Plaintiff wants time to file an amended complaint. 13 DATED: 14 15 _____ 16 Plaintiff 17 18 19 20 21 22 23 24 25 26 27 28