(PC) Belmonte v. Palomares

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MIGUEL BELMONTE, No. 2:19-cv-00163-CKD-P 12 Plaintiff, 13 v. ORDER S. PALOMARES, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this federal civil rights action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

20 I. Screening Standard 21 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

5 In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 13 at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 16 U.S. 232, 236 (1974).

17 II. Factual and Procedural History 18 The court screened plaintiff’s first amended complaint and dismissed it with leave to amend on March 21, 2019 because the challenges to his disciplinary conviction were barred by Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 11. In this same order, plaintiff was cautioned that an amended complaint must be complete in itself without reference to any additional pleading. ECF No. 11 at 5 (citing Local Rule 220).

23 Following an extension of time, plaintiff filed a second amended complaint on April 11, 2019. ECF No. 17. Since that date, plaintiff has filed seven additional pleadings which he captions as “Supplement[s]” to his second amended complaint. ECF Nos. 20-23, 25-27.

26 //// //// //// 1 III. Analysis 2 The court is unable to screen plaintiff’s second amended complaint due to the number of subsequent filings by plaintiff in which he seeks to add claims or otherwise amend his pending complaint. Accordingly, plaintiff’s second amended complaint will be dismissed and plaintiff will be granted one last opportunity to file a single amended complaint that lists all claims and defendants which plaintiff wishes to pursue. See Fed. R. Civ. P. 15(a)(2). Plaintiff is further advised against supplementing any third amended complaint with additional “notices” or “supplements” unless he files a formal motion asking to do so, and the court grants his motion.

9 See Fed. R. Civ. P 15(d). The court will strike any “supplements” filed in violation of this court order.

11 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

19 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 23 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

26 In accordance with the above, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s second amended complaint (ECF No. 17) is dismissed.

28 2. Plaintiff is granted thirty days from the date of service of this order to file an amended | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket | number assigned this case and must be labeled “Amended Complaint.” Failure to file an | amended complaint in accordance with this order will result in a recommendation that this action | be dismissed.

6 | Dated: January 13, 2020 bh rdf ht / {a— 7 CAROLYN K. DELANEY : g UNITED STATES MAGISTRATE JUDGE 15 12/belm0163.2ndamended.docx