(PC) Richard v. Valencia ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRAIG RICHARD, No. 2:24-cv-1332 CKD P 12 Plaintiff, 13 v. ORDER 14 VALENCIA, et al., 15 Defendants. 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). Plaintiff has paid the filing fee. 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 22 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 23 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 25 The court has reviewed plaintiff’s complaint and finds that plaintiff may proceed on 26 claims against defendants Valencia, Abukalam, and Serna arising under the Eighth Amendment 27 for exposing plaintiff to harmful conditions of confinement. 28 ///// 1 At this point, plaintiff has two options: proceed on the claims identified above or file an 2 amended complaint in an attempt to cure deficiencies with respect to the other claims. 3 If plaintiff chooses to proceed on the claim described above, the court will construe this as a 4 request to voluntarily dismiss the additional claims and defendants pursuant to Rule 41(a)(1)(i) of 5 the Federal Rules of Civil Procedure. 6 Plaintiff alleges he was retaliated against in violation of the First Amendment. Prison 7 officials generally cannot retaliate against inmates for exercising First Amendment rights. Rizzo 8 v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). For example, a correctional officer cannot deny an 9 inmate meals because the inmate filed a grievance against the officer. In his complaint, plaintiff 10 essentially alleges he was attacked by another inmate at least partially because defendant 11 Valencia does not like plaintiff. To state a claim for retaliation, however, plaintiff most point to 12 facts suggesting that Valencia harmed plaintiff because of some specific speech protected under 13 the First Amendment. 14 Plaintiff is informed that the court cannot refer to a prior pleading to make plaintiff’s 15 amended complaint complete. Local Rule 220 requires that an amended complaint be complete 16 in itself without reference to any prior pleading. This is because, as a general rule, an amended 17 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 18 Once plaintiff files an amended complaint, the original pleading no longer serves any function in 19 the case. Therefore, in an amended complaint, as in an original complaint, each claim and the 20 involvement of each defendant must be sufficiently alleged. 21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. Plaintiff can proceed immediately on the claims described herein. In the alternative, 23 plaintiff may choose to file an amended complaint to fix the deficiencies identified in this order 24 with respect to the remaining claims. 25 2. Within 21 days from the date of this order, plaintiff shall complete and return the 26 attached Notice of Election form notifying the court whether he wants to proceed on the screened 27 complaint or whether he wants time to file an amended complaint. 28 3. If plaintiff fails to return the attached Notice of Election within the time provided, the 1 | court will construe this failure as consent to dismiss the deficient claims and proceed only on the 2 || cognizable claim identified above. 3 || Dated: September 30, 2024 Card Kt | La Ly (g— 4 CAROLYN K.DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 | 1 9 rich1332.option 10 1] 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 CRAIG RICHARD, No. 2:24-cv-1332 CKD P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 VALENCIA, et al., 14 Defendants 15 16 Check only one option: 17 _____ 1. Plaintiff wishes to proceed on a claims arising under the Eighth Amendment against 18 defendants Valencia, Abukalam and Serna. 19 _____ 2. Plaintiff wants time to file a first amended complaint. 20 DATED: 21 22 ____________________ 23 Plaintiff 24 25 26 27 28