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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DARREL L. SMITH,

Plaintiff, No. CIV S-04-0703 MCE KJM P

vs.

SGT. J. SWANEY, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se. On October 27, 2004, the court

recommended that this action be dismissed due to plaintiff’s failure to file a request to proceed in

forma pauperis. Plaintiff filed a request to proceed in forma pauperis on November 22, 2004. 

Therefore, the court will vacate its October 27, 2004 recommendation.

Plaintiff has submitted a declaration that makes the showing required by 28

U.S.C. § 1915(a). Accordingly, plaintiff’s request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee in effect at the time of filing of his action,

$150.00. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and

is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28

U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the

preceding month’s income credited to plaintiff’s prison trust account. These payments shall be

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collected and 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).

Plaintiff seeks relief under 42 U.S.C. § 1983. 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). 

A review of the court’s file with respect to this matter reveals that plaintiff has

filed three different complaints concerning related matters, all of which are titled “third amended

complaint.” Good cause appearing, all three complaints will be dismissed and plaintiff will be

granted leave to file a single “fourth amended complaint,” which must include any and all claims

plaintiff wishes to pursue in this action. Plaintiff is informed that from here on, after filing his

“fourth amended complaint,” he must request permission to file any further amended complaints. 

For example, if plaintiff files a fifth amended complaint without first seeking permission to do

so, the court may recommend that this action be dismissed for failure to follow court orders.

If plaintiff chooses to file a “fourth amended 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 prior pleadings in

order to make plaintiff's fourth amended complaint complete. Local Rule 15-220 requires that an

amended complaint be complete in itself without reference to any prior pleading. This is

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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. The court’s October 27, 2004 findings and recommendations are vacated.

2. Plaintiff's request for leave to proceed in forma pauperis is granted.

3. Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action. 

The fee shall be collected and paid in accordance with this court’s order to the Director of the

California Department of Corrections filed concurrently herewith.

4. Plaintiff's April 8, 2004; April 19, 2004 and May 3, 2004 complaints are

dismissed. 

5. Plaintiff is granted thirty days from the date of service of this order to file a

fourth 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 fourth amended complaint

must bear the docket number assigned this case and must be labeled “ Fourth Amended

Complaint”; plaintiff must file an original and two copies of the fourth amended complaint;

failure to file an amended complaint in accordance with this order will result in a

recommendation that this action be dismissed.

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6. The Clerk of Court is directed to send plaintiff a copy of the form complaint

for use by inmates in filing complaints under 42 U.S.C. § 1983.

DATED: May 17, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

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smit0703.14.a

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