(PC) Garcia v. Herrera ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO GARCIA, No. 2:22-cv-1612 CKD P 12 Plaintiff, 13 v. ORDER 14 LINDA, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1) and plaintiff has consented to have all matters in this action before a United States 20 Magistrate Judge. See 28 U.S.C. § 636(c). 21 Plaintiff requests leave to proceed in forma pauperis. Since 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 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 9 which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The 10 court will, however, grant leave to file an amended complaint. 11 Plaintiff is advised that under 42 U.S.C. § 1997e(a) “[n]o action shall be brought with 12 respect to prison conditions under section 1983 of this title, or any other Federal law, by a 13 prisoner confined in any jail, prison, or other correctional facility until such administrative 14 remedies as are available are exhausted.” On page 10 of his complaint, plaintiff indicates that 15 exhaustion of administrative remedies is still pending. 16 Plaintiff asserts a violation of California law, but plaintiff fails to plead compliance with 17 the California Tort Claims Act. Plaintiff is informed that before he may proceed on a claim 18 arising under California law in this court he must comply with the terms of the California Tort 19 Claims Act, and then plead compliance. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub. 20 Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts 21 demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista 22 Unified School Dist., 42 Cal.4th 201, 209 (2007). 23 Plaintiff identifies the only defendant as “Linda.” In the amended complaint, plaintiff 24 should indicate if this is defendant’s first or last name and if it is her first name, plaintiff should 25 include her last name. 26 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 27 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 28 complaint be complete in itself without reference to any prior pleading. This is because, as a 1 || general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 2 | F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 3 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 4 || complaint, each claim and the involvement of each defendant must be sufficiently alleged. 5 In accordance with the above, IT IS HEREBY ORDERED that: 6 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 7 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 8 | shall be collected and paid in accordance with this court’s order to the Director of the California 9 || Department of Corrections and Rehabilitation filed concurrently herewith. 10 3. Plaintiff's complaint is dismissed. 11 4. Plaintiff □□ granted thirty days from the date of service of this order to file an amended 12 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 13 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 14 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 15 || amended complaint in accordance with this order will result in a recommendation that this action 16 || be dismissed. 17 | Dated: October 4, 2022 / ae □□ / a Ly a 18 CAROLYN K DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 21 | 1 garcl612.14 22 23 24 25 26 27 28