(PC) Dailey v. Ellis ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHARON N. DAILEY, No. 2:23-cv-0786 KJN P 12 Plaintiff, 13 v. ORDER 14 JOHN B. ELLIS, et al., 15 Defendants. 16 17 Plaintiff is a pretrial detainee, proceeding pro se. Plaintiff seeks relief pursuant to 42 18 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 As discussed below, plaintiff’s complaint is dismissed with leave to amend. 4 I. Screening Standards 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 6 The Civil Rights Act 7 To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal 8 constitutional or statutory right; and (2) that the violation was committed by a person acting under 9 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 10 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 11 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 12 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 13 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 14 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 15 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 16 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the 17 violation of the prisoner’s constitutional rights can be established in a number of ways, including 18 by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision, 19 or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202, 20 1208 (9th Cir. 2011). 21 II. Discussion 22 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 23 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 24 complaint is made more difficult to screen because plaintiff failed to identify each defendant and 25 his or her employer, which is also required to accomplish service of process. The court 26 determines that the complaint does not contain a short and plain statement as required by Fed. R. 27 Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must 28 give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. 1 Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of 2 particularity overt acts which each defendant engaged in that support plaintiff’s claim. Id. 3 Because plaintiff failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint 4 must be dismissed. The court will, however, grant leave to file an amended complaint. 5 A. Potentially Putative Claims 6 Plaintiff makes vague reference to “medical indifference,” and claims she is not receiving 7 the “correct” medical care or the “necessary” medical care outside of the jail. But plaintiff 8 provides no specific facts as to the nature of her medical need, or what individual, if any, 9 intentionally denied her medical care. 10 A pretrial detainee’s claim arises under the Fourteenth Amendment’s Due Process Clause 11 and is governed by an objective deliberate-indifference standard rather than the subjective one 12 that applies to a state prisoner’s claim. 13 [T]he elements of a pretrial detainee’s medical care claim against an individual defendant under the due process clause of the Fourteenth 14 Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) 15 those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available 16 measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 17 involved -- making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused 18 the plaintiff’s injuries. 19 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). For the third element, the 20 defendant’s conduct must be objectively unreasonable, “a test that will necessarily ‘turn[ ] on the 21 facts and circumstances of each particular case.’” Id. (alteration in original) (quoting Castro v. 22 County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)). “[T]he plaintiff must ‘prove more 23 than negligence but less than subjective intent -- something akin to reckless disregard.” Id. 24 (quoting Castro, 833 F.3d at 1071). 25 If plaintiff chooses to amend her complaint to pursue a particular medical claim, she must 26 set forth facts meeting each element set forth in Gordon. 27 Plaintiff also makes a passing reference to “excessive force,” but provides no facts 28 explaining the circumstances or context for such claim. 1 The Fourteenth Amendment’s Due Process Clause applies to the use of excessive force 2 against pretrial detainees that amounts to punishment. Kingsley v. Hendrickson, 576 U.S. 389, 3 397 (2015); Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002). Force is 4 excessive if the officers’ use of force was “objectively unreasonable” in light of the facts and 5 circumstances confronting them, without regard to their mental state. Kingsley, 576 U.S. at 396; 6 see also Graham v. Connor, 490 U.S. 386, 397 (1989) (applying an objectively unreasonable 7 standard to a Fourth Amendment excessive force claim arising during an investigatory stop). In 8 determining whether the use of force was reasonable, the Court should consider factors including, 9 but not limited to 10 the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by 11 the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the 12 officer; and whether the plaintiff was actively resisting. 13 Kingsley, 576 U.S. at 397. Because officers are often forced to make split-second decisions in 14 rapidly evolving situations, the reasonableness of a particular use of force must be made “from 15 the perspective of a reasonable officer on the scene, including what the officer knew at the time, 16 not with the 20/20 vision of hindsight.” Id. at 2473-74 (citing Graham, 490 U.S. at 396). Further, 17 “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s 18 chambers,” violates the Constitution. Graham, 490 U.S. at 396 (citation omitted). 19 Plaintiff’s complaint does not address all of the factors set forth above and does not 20 identify each defendant and what such defendant did or did not do that allegedly violated 21 plaintiff’s rights. Plaintiff is granted leave to amend to address the above factors and identify the 22 culpable individuals. 23 B. Claims Not Cognizable in a § 1983 Action 24 1. Defamation/Libel 25 A federal civil rights action under 42 U.S.C. § 1983 “is not itself a source of substantive 26 rights,” but rather provides “a method for vindicating federal rights elsewhere conferred.” Baker 27 v. McCollan, 443 U.S. 137, 144, n.3 (1979). In other words, plaintiffs must specifically allege the 28 constitutional right that was violated. Graham v. Connor, 490 U.S. 386, 394 (1989); Baker, 443 1 U.S. at 140. Therefore, to the extent plaintiff attempts to raise a defamation or libel claim, such 2 claim alone does not rise to the level of a federal constitutional violation. See Williams v. 3 Gorton, 529 F.2d 668, 670 (9th Cir. 1976) (stating defamation itself does not establish cause of 4 action under Section 1983; it is deprivation of constitutional rights for which Civil Rights Act 5 creates remedy). “To establish a civil rights claim under 42 U.S.C. § 1983, a plaintiff must assert 6 more than a violation of state tort law -- he [or she] must show that the defendant deprived him 7 [or her] of an interest protected by the Constitution or federal law.” Weiner v. San Diego Cty., 8 210 F.3d 1025, 1032 (9th Cir. 2000) (citing Paul v. Davis, 424 U.S. 693, 712 (1976)); Hernandez 9 v. Johnson, 833 F.2d 1316, 1319 (9th Cir. 1987) (libel and slander claims precluded by Paul); 10 Sadler v. Dutton, 2017 WL 3217119, at *6 (D. Mont. June 1, 2017), adopted, 2017 WL 3219479 11 (D. Mont. July 28, 2017). Specifically, plaintiff must join her defamation claim to a recognizable 12 Section 1983 wrong. See Buckey v. Cty. of Los Angeles, 968 F.2d 791, 795 (9th Cir. 1992). 13 Thus, to the extent plaintiff attempts to bring a federal civil rights action for defamation or libel, 14 such effort fails. 15 Further, exhibits to plaintiff’s complaint demonstrate that she is already pursuing 16 defamation and libel claims in the Solano County Superior Court in Case No. FCS058766. (ECF 17 No. 1 at 52-77,) 18 2. Property Damage 19 Plaintiff makes vague references to property damage. 20 The United States Supreme Court has held that “an unauthorized intentional deprivation 21 of property by a state employee does not constitute a violation of the procedural requirements of 22 the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for 23 the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state 24 provides a meaningful postdeprivation remedy, only authorized, intentional deprivations 25 constitute actionable violations of the Due Process Clause. An authorized deprivation is one 26 carried out pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 27 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 28 1149 (9th Cir. 1987). Here, plaintiff has not alleged any facts which suggest that the deprivation 1 was authorized. The California Legislature has provided a remedy for tort claims against public 2 officials in the California Government Code, §§ 900, et seq. Because plaintiff has not attempted 3 to seek redress in the state system, she cannot sue in federal court on the claim that the state 4 deprived her of property without due process of the law. 5 C. Improper Defendants 6 To the extent plaintiff is attempting to sue the state court trial judge or the district attorney 7 or prosecutor, such effort is unavailing. 8 The Supreme Court has held that judges acting within the course and scope of their 9 judicial duties are absolutely immune from liability for damages under § 1983. Pierson v. Ray, 10 386 U.S. 547 (1967). A judge is “subject to liability only when he has acted in the ‘clear absence 11 of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-7 (1978), quoting Bradley v. Fisher, 12 13 Wall. 335, 351 (1872). A judge’s jurisdiction is quite broad. The two-part test of Stump v. 13 Sparkman determines its scope: 14 The relevant cases demonstrates that the factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act 15 itself, i.e., whether it is a function normally performed by a judge and to the expectation of the parties, i.e., whether they dealt with the 16 judge in his judicial capacity. 17 Id. at 361. Therefore, the judge’s actions taken during the course of the criminal proceedings 18 against plaintiff are absolutely immune from liability for § 1983 damages. 19 Prosecutors are also absolutely immune from civil suits for damages under § 1983 which 20 challenge activities related to the initiation and presentation of criminal prosecutions. Imbler v. 21 Pachtman, 424 U.S. 409 (1976). A prosecutor is protected by absolute immunity from liability in 22 a civil rights suit for damages “when performing the traditional functions of an advocate.” Kalina 23 v. Fletcher, 522 U.S. 118, 131 (1997) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 24 A prosecutor’s advocacy functions are those activities that are “intimately associated with the 25 judicial phase of the criminal process. . . .” Imbler, 424 U.S. at 430. Such activities include, 26 among other things, “initiating a prosecution and [ ] presenting the State’s case” at trial, even if 27 such activities involve “the knowing use of false testimony at trial, the suppression of exculpatory 28 evidence, and malicious prosecution.” Id. at 431. Typical activities protected by prosecutorial 1 immunity include “acts undertaken by a prosecutor in preparing for the initiation of judicial 2 proceedings or for trial, and which occur in the course of [the prosecutor’s] role as an advocate 3 for the State.” Buckley, 509 U.S. at 273. Thus, the prosecutor’s actions taken during the 4 prosecution of plaintiff are barred by prosecutorial immunity. 5 D. Improper Relief 6 i. Quash Warrant and Suppress Evidence 7 Plaintiff asks this court to “quash warrant and suppress all evidence.” (ECF No. 1 at 7.) 8 Plaintiff appends copies of motions to quash search warrants and suppress evidence which bear 9 the Solano County Superior Court Case No. FCR360045. (ECF No. 1 at 9-44.) Plaintiff must 10 pursue such requests in the Solano County Superior Court. As of December 4, 2023, Solano 11 County Superior Court Case No. FCR360045 remained pending.1 12 Moreover, a federal district court does not have jurisdiction to review errors in state court 13 decisions in civil cases. Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 14 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923). “The district court lacks subject 15 matter jurisdiction either to conduct a direct review of a state court judgment or to scrutinize the 16 state court’s application of various rules and procedures pertaining to the state case.” Samuel v. 17 Michaud, 980 F. Supp. 1381, 1411-12 (D. Idaho 1996), aff’d, 129 F.3d 127 (9th Cir. 1997). See 18 also Branson v. Nott, 62 F.3d 287, 291-92 (9th Cir.1995) (finding no subject matter jurisdiction 19 over section 1983 claim seeking, inter alia, implicit reversal of state trial court action); MacKay v. 20 Pfeil, 827 F.2d 540, 544-45 (9th Cir. 1987) (attacking state court judgment because substantive 21 defense improper under Rooker-Feldman). That the federal district court action alleges the state 22 court’s action was unconstitutional does not change the rule. Feldman, 460 U.S. at 486. 23 24 1 The court may take judicial notice of facts that are “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot 25 reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 26 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the Solano 27 County Superior Court is (accessed Dec. 4, 2023). 28 1 ii. Release from Jail 2 To the extent plaintiff seeks release from jail, plaintiff is advised that as a general rule, a 3 claim that challenges the fact or duration of an inmate’s confinement should be addressed by 4 filing a habeas corpus petition, while a claim that challenges the conditions of confinement should 5 be addressed by filing a civil rights action. See Wolff v. McDonnell, 418 U.S. 539, 554 (1974); 6 Ramirez v. Galaza, 334 F.3d 850, 858-859 (9th Cir. 2003), cert. denied, 541 U.S. 1063 (2004). 7 Thus, to the extent plaintiff seeks release from custody, she must file a petition for writ of habeas 8 corpus.2 To the extent plaintiff seeks release for the limited purpose of receiving medical care, 9 medical officials at the county jail determine whether outside medical care is required and arrange 10 transport. If plaintiff wishes to arrange her own outside medical care, she may wish to seek the 11 advice of her public defender referenced in her complaint. (ECF No. 1 at 108.) In any event, 12 plaintiff may not obtain release from custody through a civil rights action under 42 U.S.C. 13 § 1983. 14 E. Improper Joinder 15 Finally, plaintiff’s disparate claims comprise a “shotgun” or “kitchen sink” complaint, 16 where she raises unrelated claims against unrelated defendants. Thus, the complaint also does not 17 comply with Rule 20(a)(2) of the Federal Rules of Civil Procedure, which provides that the right 18 to relief against multiple defendants must arise out of common events and reflect common 19 questions of law or fact. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[u]nrelated 20 claims against different defendants belong in different suits.”). In any amended complaint, 21 plaintiff should limit her claims to those that arise from common questions of law or fact; 22 alternatively, plaintiff may name a single defendant and bring such claims as she may have 23 against that defendant, see Fed. R. Civ. P. 18(a). 24 F. Exhaustion of Administrative Remedies 25 “The Prison Litigation Reform Act of 1995 (“PLRA”) mandates that an inmate exhaust 26 27 2 The undersigned notes that plaintiff appended pages of a habeas corpus petition. (ECF No. 1 at 50-51, 105-07. But plaintiff may not pursue civil rights claims and challenge her confinement in 28 the same action. Ramirez v. Galaza, 334 F.3d at 858-859. 1 ‘such administrative remedies as are available’ before bringing suit to challenge prison 2 conditions.” Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016) (quoting 42 U.S.C. § 1997e(a)). The 3 availability of administrative remedies must be assessed at the time the inmate filed the action. 4 Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017). “There is no question that exhaustion 5 is mandatory under the PLRA[.]” Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted) 6 (cited with approval in Ross, 136 S. Ct. at 1856). “[T]he PLRA’s exhaustion requirement applies 7 to all inmate suits about prison life, whether they involve general circumstances or particular 8 episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 9 U.S. 516, 532 (2002). 10 Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 11 741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other 12 critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Supreme Court has 13 also cautioned against reading futility or other exceptions into the statutory exhaustion 14 requirement. See Booth, 532 U.S. at 741 n.6; Ross, 578 U.S. at 639-40. Moreover, because 15 proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by 16 filing an untimely or otherwise procedurally defective administrative grievance or appeal. See 17 Woodford, 548 U.S. at 90-93. “[T]o properly exhaust administrative remedies prisoners ‘must 18 complete the administrative review process in accordance with the applicable procedural rules,’ [] 19 - rules that are defined not by the PLRA, but by the prison [or jail] grievance process itself.” 20 Jones v. Bock, 549 U.S. at 218 (quoting Woodford, 548 U.S. at 88). 21 “[F]ailure to exhaust is an affirmative defense under the PLRA.” Jones v. Bock, 549 U.S. 22 at 216. It is the defendant's burden “to prove that there was an available administrative remedy.” 23 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (citing Hilao v. Estate of Marcos, 24 103 F.3d 767, 778 n.5 (9th Cir. 1996)). The burden then “shifts to the prisoner to come forward 25 with evidence showing that there is something in his particular case that made the existing and 26 generally available administrative remedies unavailable to him.” Id. 27 A prisoner is required to exhaust administrative remedies before filing suit. McKinney v. 28 Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curium). Section 1997e(a) mandates that “[n]o 1 action shall be brought . . . until [the prisoner's] administrative remedies . . . are exhausted. 42 2 U.S.C. § 1997e(a). “The ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under 3 § 1983 may be entertained.” Booth, 532 U.S. at 738. “Exhaustion subsequent to the filing of suit 4 will not suffice.” McKinney, 311 F.3d at 1199. 5 In her complaint, plaintiff claims there is no grievance process for court orders. (ECF No. 6 1 at 4-6.) However, plaintiff is cautioned that if she amends her complaint to bring Fourteenth 7 Amendment claims for specific instances of denial of medical care or the alleged use of excessive 8 force, she must have exhausted such claims through the jail’s administrative process prior to the 9 filing date of the instant action. 10 Leave to Amend 11 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 12 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 13 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 14 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 15 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 16 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 17 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 18 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 19 268 (9th Cir. 1982). 20 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 21 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 22 complaint be complete in itself without reference to any prior pleading. This requirement exists 23 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 24 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 25 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 26 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 27 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 28 and the involvement of each defendant must be sufficiently alleged. 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff's request for leave to proceed in forma pauperis 1s granted. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 4 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 5 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 6 || Sheriff of Solano County filed concurrently herewith. 7 3. Plaintiff's complaint is dismissed. 8 4. Within thirty days from the date of this order, plaintiff shall complete the attached 9 || Notice of Amendment and submit the following documents to the court: 10 a. The completed Notice of Amendment; and 11 b. An original of the Amended Complaint. 12 | Plaintiffs amended complaint shall comply with the requirements of the Civil Rights Act, the 13 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 14 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 15 Failure to file an amended complaint in accordance with this order may result in the 16 || dismissal of this action. 17 | Dated: December 6, 2023 i Aectl Aharon 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 20 /dail0786.14n 21 22 23 24 25 26 27 28 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SHARON N. DAILEY, No. 2:23-cv-0786 KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 JOHN B. ELLIS, et al., 14 Defendants. 15 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Amended Complaint DATED: 19 20 ________________________________ Plaintiff 21 22 23 24 25 26 27 28