From Casetext: Smarter Legal Research

Lerma v. Gonzales

United States District Court, E.D. California
Feb 2, 2006
CV F 05 0797 OWW WMW P (E.D. Cal. Feb. 2, 2006)

Opinion

CV F 05 0797 OWW WMW P.

February 2, 2006


ORDER


Plaintiff is a state prisoner proceeding pro se. On October 20, 2005, an order was entered, dismissing the first amended complaint and granting plaintiff leave to file a second amended complaint. On October 24, 2005, plaintiff filed second amended complaint. On November 8, 2005, plaintiff filed a third amended complaint. On November 17, 2005, the court lodged a fourth amended complaint, and on January 10, 2006, a fifth amended complaint was lodged.

The court notes that the most recent submission on January 10, 2006, consists of two pages of generalized allegations that fails to state a claim for relief. Plaintiff is advised that once an amended complaint is filed, the court will not consider any allegations in prior complaints. The court will not refer to prior pleadings in order to make an amended complaint complete.

The statute on which this action proceeds plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which the complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

The court finds the allegations in plaintiff's fifth amended complaint vague and conclusory. The court has determined that the complaint does not contain a short and plain statement as required by Fed.R.Civ.P. 8(a)(2). 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. Because plaintiff has failed to comply with the requirements of Fed.R.Civ.P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

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).

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.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's January 10, 2006, amended complaint is dismissed; and

2. Plaintiff is granted thirty days from the date of service of this order to file a sixth 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 "Sixth Amended Complaint" plaintiff must file an original and two copies of the amended complaint; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED.


Summaries of

Lerma v. Gonzales

United States District Court, E.D. California
Feb 2, 2006
CV F 05 0797 OWW WMW P (E.D. Cal. Feb. 2, 2006)
Case details for

Lerma v. Gonzales

Case Details

Full title:LEO LERMA, Plaintiff, v. J. GONZALES, et al., Defendants

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

Date published: Feb 2, 2006

Citations

CV F 05 0797 OWW WMW P (E.D. Cal. Feb. 2, 2006)