(PC) Kalso v. Butte County Jail

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ZACHARY LLOYD KALSO, No. 2:24-cv-0404 CKD P 12 Plaintiff, 13 v. ORDER BUTTE COUNTY JAIL, 15 Defendant.

17 Plaintiff is proceeding pro se and seeking relief 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).

19 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

21 Under 28 U.S.C. § 19159(a) 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). Plaintiff filed a complaint and an amended complaint while he was incarcerated. Because the amended complaint supersedes the original, see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), the court screens the amended complaint.

1 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. 9 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 12 U.S. 232, 236 (1974).

13 The court has reviewed plaintiff’s amended complaint and finds that it fails to state a claim upon which relief can be granted under federal law. Plaintiff’s amended complaint must be dismissed. The court will, however, grant leave to file a second amended complaint.

16 If plaintiff chooses to amend the complaint again, 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 second 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.

23 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

24 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s second amended complaint complete. Local Rule 220 requires that any 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.

28 ///// 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted.

3 2. Plaintiff's amended complaint is dismissed.

4 3. Plaintiff is granted thirty days from the date of service of this order to file a second || 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 second amended complaint must bear || the docket number assigned this case and must be labeled “Second Amended Complaint.” Failure | to file a second amended complaint in accordance with this order will result in a recommendation || that this action be dismissed.

10 | Dated: April 10, 2024 fi se / bps ANI fe fo. AG " CAROLYNK.DELANEY 12 UNITED STATES MAGISTRATE JUDGE kals0404.14