Opinion
No. 2:18-cv-0655 CKD P
07-30-2018
STEVEN GARCIA RODRIGUEZ, Plaintiff, v. DAVID BAUGHMAN, et al., Defendants.
ORDER
Plaintiff is a state prisoner 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).
Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
The court has conducted the required screening and finds that claim 1 in plaintiff's complaint states a claim upon which relief could be granted arising under the Eighth Amendment against defendant Dr. Friend. As for claim 2 against defendant Warden Baughman, plaintiff does not state a claim upon which relief could be granted.
At this point, plaintiff has two options: 1) he may proceed on claim 1; or 2) attempt to cure the deficiencies with respect to claim 2.
If plaintiff elects to amend as to claim 2, plaintiff is informed that he must adequately connect defendant Warden Baughman with the claimed denial of his rights. Farmer v. Brennan, 511 U.S. 825, 837, 843 (1994). An official can only be held liable under section 1983 upon a showing of personal participation by the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). There is no respondeat superior liability under section 1983. Id. "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998).
Also, plaintiff is informed that the court cannot refer to a prior pleading in order to make an amended pleading 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 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 request for leave to proceed in forma pauperis (ECF No. 2) is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Within twenty-one days plaintiff shall complete and return the attached form notifying the court whether he wants to proceed on claim 1 in his complaint or whether he wishes to file a first amended complaint. Failure to complete and return the attached form will result in a recommendation that this action be dismissed. Dated: July 30, 2018
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1
rodr0655.1 STEVEN GARCIA RODRIQUEZ, Plaintiff, v. DAVID BAUGHMAN, Defendant.
PLAINTIFF'S NOTICE OF HOW TO PROCEED
Check one: ___ Plaintiff wants to proceed immediately on claim 1 in his complaint. ___ Plaintiff wants time to file a first amended complaint. DATED:
/s/_________
Plaintiff