(PC) Eke v. State of California ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHIDI JOACHIM EKE, No. 2:24-cv-1227 CKD P 12 Plaintiff, 13 v. ORDER 14 STATE OF CALIFORNIA, 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) 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. As 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 In his complaint plaintiff has named the State of California as one of the defendants. The 12 Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a 13 state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 14 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 15 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of California has not 16 consented to suit. 17 The other named defendant is the Sacramento County Sherriff’s Department. 18 Municipalities cannot be held vicariously liable under § 1983 for the actions of their employees. 19 Monell v. Dep’t of Social Services, 436 U.S. 585 at 691, 694 (1978). “Instead, it is when 20 execution of a government's policy or custom, whether made by its lawmakers or by those whose 21 edicts or acts may fairly be said to represent official policy, inflicts the injury that the government 22 as an entity is responsible under § 1983.” Id. at 694. Plaintiff does not allege he suffered 23 actionable injury as a result of a Sacramento County custom or policy. 24 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 25 complained of have resulted in a deprivation of plaintiff’s federal rights. See Ellis v. Cassidy, 26 625 F.2d 227 (9th Cir. 1980). The court does not have jurisdiction unless there is a violation of 27 federal rights stated as opposed to the violations of California law identified in plaintiff’s 28 complaint. Also, in his amended complaint, plaintiff must allege in specific terms how each 1 || named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is 2 || some affirmative link or connection between a defendant’s actions and the claimed deprivation. 3 || Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official 4 || participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 5 || 268 (9th Cir. 1982). 6 Finally, plaintiff is informed that the court cannot refer to a prior pleading to make 7 || plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be 8 | complete in itself without reference to any prior pleading. This is because, as a general rule, an 9 || amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th 10 || Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any 11 | function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 12 || and the involvement of each defendant must be sufficiently alleged. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted. 15 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 16 || shall be collected and paid in accordance with this court’s order to the Director of the California 17 || Department of Corrections and Rehabilitation filed concurrently herewith. 18 3. Plaintiff's complaint is dismissed. 19 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 20 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 21 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 22 || number assigned this case and must be labeled “Amended Complaint.” Failure to file an 23 || amended complaint in accordance with this order will result in a recommendation that this action 24 || be dismissed. 25 | Dated: September 30, 2024 / □□□ / 4 [iy ai 26 CAROLYNK. DELANEY 271 1 UNITED STATES MAGISTRATE JUDGE 2g eke1227.14