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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KEVIN KING, 

Plaintiff, No. CIV S-04-1158 MCE KJM P

vs.

SAN JOAQUIN COUNTY 

SHERIFF’S DEPARTMENT et al.,

Defendants. ORDER

 /

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

filed under 42 U.S.C. § 1983. By order filed January 3, 2005, plaintiff's complaint was dismissed

with leave to file an amended complaint. Plaintiff filed a first amended complaint on February

28, 2005, and then a second amended complaint on July 18, 2005. On August 24, 2005, he filed

an addendum to his second amended complaint. This order addresses the second amended

complaint, which supersedes the first amended complaint, as well as the addendum.

As noted in prior orders, 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

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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). 

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). 

Plaintiff’s second amended complaint and its addendum are hard to decipher

narratives concerning the injuries he allegedly suffered in a van accident, later failures to treat the

resulting back injury, and the impact of the injuries on his custody level and job placement. 

Plaintiff names Deputy Coleman as the officer whose poor driving caused the accident and lists

various medical personnel at High Desert State Prison, but does not clearly tie any particular

defendant to the allegations of inadequate medical care. He also challenges the failure to provide

seatbelts in the van, arguing that California’s mandatory seatbelt law converts this failure into an

Eighth Amendment violation; plaintiff further appears to be attempting to plead a tort under

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California law.

The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution . . . shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress. 

42 U.S.C. § 1983. The statute 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 Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

meaning of § 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

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel generally are not liable under § 1983 for the

actions of their employees under a theory of respondeat superior and, therefore, when a named

defendant holds a supervisorial 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), cert. denied, 442 U.S.

941 (1979). As noted above, there can be no liability under § 1983 unless there is some

affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo,

423 U.S. at 362; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at 743. 

Vague and conclusory allegations concerning the involvement of official 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 the opportunity to submit a third amended complaint,

listing in simple form and in one document the basis of his claims and injuries and the parties he

believes are responsible for each of the harms. If plaintiff decides to file a further amended

complaint, he may wish to consult the case of McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.

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1996). In McHenry, the Ninth Circuit Court of Appeal upheld the dismissal of a complaint it

found to be “argumentative, prolix, replete with redundancy, and largely irrelevant. It consists

largely of immaterial background information.” The court observed the Federal Rules require

that a complaint consist of “simple, concise, and direct” averments. Id. As a model of concise

pleading, the court quoted the standard form negligence complaint from the Appendix to the

Federal Rules of Civil Procedure:

 1. Allegation of jurisdiction.

 2. On June 1, 1936, in a public highway, called Boylston Street, in

Boston Massachusetts, defendant negligently drove a motor vehicle

against plaintiff, who was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken,

and was otherwise injured, was prevented from transacting his

business, suffered great pain of body and mind, and incurred

expenses for medical attention and hospitalization in the sum of

one thousand dollars.

Wherefore plaintiff demands judgment against defendant in the

sum of one thousand dollars.

Id. Plaintiff’s second amended complaint suffers from some of the problems outlined in

McHenry, which complicates the court’s task of screening it. Any third amended complaint must 

contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). 

In addition, plaintiff is informed that the court cannot refer to a prior or

subsequent pleading in order to make any of plaintiff's amended complaints 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 a third

amended complaint, the earlier pleadings no longer serve any function in the case. Therefore, in

a third amended complaint, as in an original complaint, each claim and the involvement of each

defendant must be sufficiently alleged. Because the complaint must be complete in itself,

plaintiff should not submit “addenda” once he has complied with the court’s order. 

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

1. Plaintiff's second amended complaint is dismissed; 

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

third 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 “Third Amended Complaint”. Failure to

file a third amended complaint in accordance with this order will result in a recommendation that

this action be dismissed; and

3. The Clerk of the Court is directed to send plaintiff the form for use by

prisoners in filing civil rights actions. 

DATED: December 28, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

king1158.14amd

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