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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. CIV S-04-0776 LKK PAN P

vs.

D. L. RUNNELS, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action

filed pursuant to 42 U.S.C. § 1983. By order filed November 30, 2005, plaintiff's October 24,

2005, amended complaint was dismissed with leave to file an amended complaint. On January 9,

2006, plaintiff requested an extension of time to file an amended complaint and an amended

complaint. 

Plaintiff’s request for an extension of time will be granted. 

The court must 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). 

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint, or portion thereof, should only be dismissed for failure to state a

claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set

of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer

v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a

complaint under this standard, the court must accept as true the allegations of the complaint in

question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 

The court finds the allegations in plaintiff's amended complaint so vague and

conclusory that it is unable to determine whether the current action is frivolous or fails to state a

claim for relief. The court has determined that the amended 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 amended complaint must be dismissed. The court

will, however, grant leave to file an amended complaint.

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If plaintiff chooses to file an 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). An amended 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. 

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

1. Plaintiff's January 9, 2006, request for an extension of time is granted;

2. Plaintiff’s January 9, 2006, amended complaint is dismissed; and

3. Plaintiff is granted 30 days from the date of service of this order to file an

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 Amended Complaint.” Plaintiff must file an 

/////

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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.

DATED: May 17, 2006.

\004

\john0776.14amnd new

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