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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SHAWN HAWK, No. CIV S-04-0731-MCE-CMK-P

Plaintiff, 

vs. ORDER

ALAMEIDA, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983. Pending before the court is plaintiff’s second amended complaint (Doc.

17), filed on August 30, 2005.

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are

satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds

upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff

must allege with at least some degree of particularity overt acts by specific defendants which

support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it

is impossible for the court to conduct the screening required by law when the allegations are

vague and conclusory. 

I. BACKGROUND

Plaintiff names the following as defendants: Alameida; Runnels; Cook;

Ingwerson; Howard; Perry; Swartz; Correa; and Chettam. Defendants Alameida and Runnels are

supervisory personnel. Plaintiff states that, on October 10, 2002, he was issued a “general

counseling chrono” indicating that he was not in compliance with the prison’s grooming

regulations. Plaintiff claims that this “chrono” contained false information. The same day,

plaintiff filed an inmate grievance concerning the allegedly false information in the “chrono,”

and asked that the “chrono” be removed from his file because the grooming regulations violate

his religious beliefs. Plaintiff states that, on October 14, 2002, he spoke with defendant Cook

regarding the “chrono.” Plaintiff states that, during this conversation, he informed defendant

Cook about a court injunction entered in favor of prisoners at California State Prison, Solano,

which forbids enforcement of the grooming regulations. Plaintiff claims that defendant Cook

stated that no change in policy would be considered until and unless an injunction was issued in

favor of inmates at plaintiff’s institution (High Desert State Prison). 

Plaintiff claims that, on October 16, 2002, he was charged with a rules violation

based on non-compliance with the grooming standards. Plaintiff reported to the “program

office” on October 26, 2002, for a hearing on the rules violation. When asked for reasons why

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he refused to comply with the grooming regulations, plaintiff stated the following: (1) he has a

sincere belief, founded in Native American religious practices, barring him from cutting his hair

unless a relative dies; (2) grooming tools supplied to prisoners are causing injuries, including

drawing blood, which exposes inmates to blood-borne pathogens; (3) prison barbers were not

adequately trained in blood-borne pathogens and how to prevent infection; (4) the injunction

issued in favor of prisoners at the California State Prison, Solano, barred enforcement of the

grooming regulations; (5) the grooming regulations were not being applied equally among

prisoners; and (6) the prison has an obligation to protect inmates from blood-borne pathogens

and to allow for religious freedom. Plaintiff states that he was found “not guilty” of the rules

violation, which was dismissed. Plaintiff indicates that defendant Cook approved this result. 

Next, plaintiff claims that, on October 26, 2002, a fight broke out among white

and Asian inmates, which groups were subsequently placed on lock-down. Plaintiff states that,

even though he is a Native American, he was also placed on lock-down because his cellmate is

white. Plaintiff alleges that he was told by defendant Correa that, as long as he was housed with

a white inmate, he would also be subject to the lock-down. Plaintiff states that defendant Correa

told him that this directive came from defendants Perry, Cook, and Runnels. Plaintiff alleges

that he learned from another Native American inmate that, in fact, plaintiff was being singled out

because he refused to comply with the grooming regulations. Plaintiff asserts that this other

inmate also observed that other Native American inmates housed with white inmates were not on

lock-down, and that only plaintiff was being treated differently. Plaintiff states that he filed an

inmate grievance concerning his lock-down, but that prison officials never responded. 

Plaintiff alleges that, on October 29, 2002, defendant Swartz issued another rules

violation report against plaintiff based on the grooming regulations. Plaintiff claims that, as with

the prior rules violation report, this one was also based on false information. A hearing on the

rules violation was conducted by defendant Howard on November 10, 2002. Plaintiff states that

the prison staff assigned to assist him with the hearing failed to obtain necessary documents that

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plaintiff had requested. Plaintiff also states that the witnesses he had requested were not present

at the hearing. After providing defendant Howard with the same responses he gave at the prior

rules violation hearing, defendant Howard found plaintiff guilty of the rules violation. Plaintiff

was punished by having his recreational time taken away. 

Plaintiff claims that, on November 11, 2002, he was called to a meeting with

defendants Swartz and Chettam about plaintiff’s refusal to comply with the grooming

regulations. Plaintiff continued to refuse to comply with the grooming regulations and plaintiff

was charged with yet another rules violation based on his refusal to cut his hair. Plaintiff states

that, on January 3, 2003, the rules violation was re-heard by defendant Ingwerson. Plaintiff

states that he was permitted for the first time to call witnesses and present evidence, though

plaintiff claims that he was not allowed to present evidence concerning ineffectiveness of

disinfectants used on barber equipment. Plaintiff claims that he was again found guilty of a rules

violation and that he lost 30 days good-time credits and was denied yard time for 30 days as a

result. 

Plaintiff seeks a determination that the grooming regulations are unconstitutional,

and an injunction barring enforcement of the grooming regulations. Plaintiff also seeks

compensatory and punitive damages. 

II. DISCUSSION

Plaintiff’s second amended complaint alleges claims based on free exercise of

religion, deliberate indifference to serious health risks, equal protection, due process, and/or

retaliation. As against defendant Alameida, however, the complaint does not set forth his

personal involvement sufficient to state a claim based on a theory of supervisory liability. 

Supervisory personnel are generally not liable under § 1983 for the actions of their employees. 

See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no respondeat

superior liability under § 1983). A supervisor is only liable for the constitutional violations of

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subordinates if the supervisor participated in or directed the violations, or knew of the violations

and failed to act to prevent them. See id. When a defendant holds a supervisory position, the

causal link between him and the claimed constitutional violation must be specifically alleged. 

See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441

(9th Cir. 1978). Vague and conclusory allegations concerning the involvement of supervisory

personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

266, 268 (9th Cir. 1982).

Plaintiff will be given an opportunity to amend the complaint to either state a

claim against defendant Alameida based on the foregoing standards, or to omit defendant

Alameida entirely. Because the complaint otherwise appears to state a cognizable claim for

relief, if plaintiff’s amended complaint omits defendant Alameida, this action can proceed as

against the remaining defendants. 

III. CONCLUSION

Because it is possible that the deficiencies identified in this order may be cured by

amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

informed that, as a general rule, an amended complaint supersedes the original complaint. See

Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

amend, all claims alleged in the original complaint which are not alleged in the amended

complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

plaintiff's amended complaint complete. See Local Rule 15-220. An amended complaint must

be complete in itself without reference to any prior pleading. See id. 

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

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

each named defendant is involved, and must set forth some affirmative link or connection

between each defendant’s actions and the claimed deprivation. See 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). 

Finally, plaintiff is warned that failure to file an amended complaint within the

time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 

1260-61; see also Local Rule 11-110. Plaintiff is also warned that a complaint which fails to

comply with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule

41(b). See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s second amended complaint, filed on August 30, 2005, is

dismissed with leave to amend; and

2. Plaintiff shall file a third amended complaint within 30 days of the date of

service of this order. 

DATED: November 3, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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