DEAN v. KITCHEN STAFF/ARAMARK

Full title: LAMONT DEAN, Plaintiff, v. KITCHEN STAFF/ARAMARK Defendants

Court: United States District Court, E.D. California

Date published: Aug 21, 2007

No. CIV S-06-1095 MCE EFB P (E.D. Cal. Aug. 21, 2007)

Opinion

No. CIV S-06-1095 MCE EFB P.

August 21, 2007

ORDER

EDMUND BRENNAN, Magistrate Judge

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff's amended complaint, filed on July 13, 2006. On November 30, 2006, defendant Barbara Kondylis moved to dismiss, contending that plaintiff has failed to state a claim against her.

I. Summary of Facts

II. Failure to State a Claim Upon Which Relief May be Granted

Id. Hishon v. King Spalding467 U.S. 6973Conley v. Gibson355 U.S. 4145-46Palmer v. Roosevelt Lake Log Owners Ass'n651 F.2d 12891294Hospital Bldg. Co. v. Rex Hosp. Trustees425 U.S. 738740Jenkins v. McKeithen395 U.S. 411421

To state a claim under 42 U.S.C. § 1983 plaintiff must allege that an identified defendant deprived plaintiff of a right secured to him by the Constitution or laws of the United States while acting under color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. 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); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Plaintiff names Barbara Kondylis as a defendant in this action, but does not state charging allegations against her. Plaintiff's claims are limited to the facts specified above, that he was served food containing the body of an insect and that he became progressively ill as a result. Plaintiff does not allege actions on defendant's part that would prove her liable for his harm. Defendant's motion to dismiss will be granted with leave to amend. Plaintiff will be granted an opportunity to amend his pleading in order to name defendants and make factual allegations that give rise to a cause of action.

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, the complaint 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); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 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).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 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 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.

Accordingly, it is hereby ORDERED that:

1. Defendant's November 30, 2006, motion to dismiss is granted with leave to amend; and

2. Plaintiff is granted 30 days from the date this order is served in which to file an amended complaint that states a cause of action. See 28 U.S.C. § 1915A; see also Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (indigent prisoner proceeding without counsel must be given leave to file amended complaint unless the court can rule out any possibility that the plaintiff could state a claim).

Failure to file an amended complaint will result in a recommendation that this action be dismissed.