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1 These are the only remaining defendants in this action. 

Defendants State of California; Ira Kaufman; William Pangman; Garrett

Olney; and Doug Prouty have been dismissed by earlier order of the

district court. (See Order filed January 21, 2005.)

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOSEPH ROBINSON, No. CIV.S-04-1888 GEB DAD PS

Plaintiff,

v. ORDER

STATE OF CALIFORNIA, et al.,

Defendants.

___________________________/

This 42 U.S.C. § 1983 action is before the court on

defendants Plumas County; Greg Hagwood; James Reichle; Jeff Cunan;

and Gary McGowan’s1 motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). For the reasons explained below,

defendants’ motion to dismiss will be granted and plaintiff’s amended

complaint will be dismissed with leave to amend.

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2

LEGAL STANDARDS

A motion to dismiss pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure tests the sufficiency of the

complaint. See North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d

578, 581 (9th Cir. 1983). Dismissal of the complaint or of any claim

within it “can be based on the lack of a cognizable legal theory or

the absence of sufficient facts alleged under a cognizable legal

theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

Cir. 1990); see also Robertson v. Dean Witter Reynolds, Inc., 749

F.2d 530, 534 (9th Cir. 1984).

In considering a motion to dismiss for failure to state a

claim, the court accepts as true all material allegations in the

complaint and construes those allegations, as well as the reasonable

inferences that can be drawn from them, in the light most favorable

to the plaintiff. See Hishon v. King & Spalding, 467 U.S. 69, 73

(1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). 

In a case where the plaintiff is pro se, the court has an obligation

to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026,

1027 n.1 (9th Cir. 1985)(en banc). However, the court’s liberal

interpretation of a pro se complaint may not supply essential

elements of a claim that are not pled. Pena v. Gardner, 976 F.2d

469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska,

673 F.2d 266, 268 (9th Cir. 1982).

ANALYSIS

At the time defendants filed their motion to dismiss the

operative pleading in this case was plaintiff’s original complaint. 

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2 Under Federal Rule of Civil Procedure 15(a) “[a] party may

amend the party's pleading once as a matter of course at any time

before a responsive pleading is served ....” A motion to dismiss is

not a “responsive pleading” within the meaning of Rule 15(a). Crum

v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000);

Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995). 

“Neither the filing nor granting of such a motion before answer

terminates the right to amend ....” Doe v. United States, 58 F.3d

494, 497 (9th Cir. 1995)(quoting Schreiber Distrib. Co. v. Serv-Well

Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986))(internal

quotations omitted). Thus, plaintiff is entitled to proceed on his

amended complaint, which supercedes the original complaint. See Loux

v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

3 Following the hearing on defendants’ motion, plaintiff filed

a second amended complaint without leave of court. That second

amended complaint was stricken from the record. (See Order filed

January 20, 2005.) On June 9, 2005, plaintiff filed another second

amended complaint and on June 10, 2005, he filed a notice of motion

to filed that second amended complaint, noticing the hearing for July

8, 2005. However, as of June 9, 2005, a second amended complaint was

not yet authorized. Therefore, although plaintiff now will be

granted leave to file a second amended complaint, the second amended

complaint filed on June 9, 2005, will be stricken from the record. 

Further, plaintiff’s motion for leave to file his complaint will

denied as moot and the hearing on that motion will be vacated.

3

In response to defendants’ motion plaintiff, who is proceeding pro

se, filed an amended complaint, which he was entitled to do. See

Fed. R. Civ. P. 15(a).2 While in some instances the filing of an

amended pleading moots a motion to dismiss, such is not the case

here. As explained below, plaintiff’s amended complaint does not

cure the deficiencies detailed in defendants’ motion. Therefore, the

undersigned has considered defendants’ motion to dismiss as directed

at plaintiff’s amended complaint.3 See Schwarzer, Tashima and

Wagstaffe, Federal Procedure Before Trial, ¶ 9:262 (The Rutter Group

2004)(“An amended complaint supersedes the prior complaint as a

pleading. Thus, the court will usually treat the motion to dismiss

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as mooted. It may, however, proceed with the motion if the amendment

does not cure the defect.”).

Plaintiff’s amended complaint alleges that defendants

wrongfully convicted and imprisoned plaintiff in violation of his

constitutional rights. However, 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. 

The amended complaint, consisting of eight typed pages and

setting forth fifteen “counts,” fails to meet these requirements. 

Each of the fifteen counts is supported by only one or two sentences

of conclusory allegations. For example, Count Six alleges: “Hagwood

and Kaufman violated Robinson’s right to be secure against

unreasonable search and seizure.” (Am. Compl. at 6.) Count Seven

alleges: “Hagwood, Kaufman, Pangman, Olney, Reichle, Cunan, McGowan,

and Prouty violated Robinson’s right to due process.” (Id.) Thus,

the precise nature of plaintiff’s intended claims are unclear. As

such, the court finds that the amended complaint’s allegations do not

amount to a short plain statement of a claim showing that plaintiff

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4 Plaintiff asserted at the hearing on defendants’ motion that

the nature of his claims are explicated in his declaration which was

submitted in connection with his opposition to the motion. However,

that declaration is not attached to the amended complaint. Cf. Parks

School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.

1995)(stating court may consider documents attached to complaint in

evaluating motion to dismiss). Moreover, even if that declaration

were attached, it would not save the amended complaint. The 24-page,

593-paragraph declaration does not amount to a short and plain

statement of a claim.

5

is entitled to relief or set forth any factual allegations giving

rise to federal jurisdiction.4 See Fed. R. Civ. P. 8(a)(1), (2). 

The court recognizes that the amended complaint makes

reference to 42 U.S.C. § 1983 and various constitutional rights. 

However, the amended complaint does not allege how the conduct

complained of has resulted in a deprivation of a right, privilege or

immunity secured by the Constitution or federal law by a person

acting under color of state law. L.W. v. Grubbs, 974 F.2d 119, 120

(9th Cir. 1992); Lopez v. Dept. of Health Serv., 939 F.2d 881, 883

(9th Cir. 1991). The Civil Rights Act 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

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5 As discussed at the hearing on the pending motion, to the

extent this action concerns the actions of defendant Reichle in

connection with criminal proceedings held in state court, his alleged

conduct -- and any similar conduct by his deputies, defendants Cunan

and McGowan -- is likely of the kind that would entitle these

defendants to absolute prosecutorial immunity under § 1983. See KRL

v. Moore, 384 F.3d 1105, 1110-11 (9th Cir. 2004).

6

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 such as Plumas County

District Attorney James Reichle are generally not liable under § 1983

for the actions of their employees under a theory of respondeat

superior.5 Therefore, when a named defendant holds a supervisory

position, the causal link between the defendant 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). “A supervisor is only liable for

constitutional violations of his subordinates if the supervisor

participated in or directed the violations, or knew of the violations

and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040,

1045 (9th Cir. 1989)(citing Ybarra v. Reno Thunderbird Mobile Home

Village, 723 F.2d 675, 680-81 (9th Cir. 1984)). Vague and conclusory

allegations concerning the involvement of official personnel in civil

rights violations are not sufficient. See Ivey, 673 F.2d at 268.

Finally, the amended complaint also fails to sufficiently

allege a claim of municipal liability arising from any policy of

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7

Plumas County. See Monell, 436 U.S. at 690-91. Plaintiff’s amended

complaint contains no specific allegations regarding any policy or

custom of Plumas County resulting in a deprivation of constitutional

rights; any decision by an official with final policy-making

authority which resulted in a violation of plaintiff’s rights; or any

such official’s ratification of an unconstitutional decision by a

subordinate. See Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th

Cir. 1992).

Because of these deficiencies, plaintiff’s amended

complaint must be dismissed. Nonetheless, the court will grant leave

to file a second amended complaint. If plaintiff chooses to amend

the amended complaint, he must set forth the grounds upon which the

court’s jurisdiction depends. Moreover, the second amended complaint

must include clear and concise factual allegations describing the

events which underlie plaintiff’s claims.

In addition, plaintiff is informed that the court cannot

refer to a prior pleading in order to make plaintiff’s second 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, 375 F.2d at 57. Once

plaintiff files a second amended complaint, the earlier pleadings no

longer serve any function in the case. Therefore, in a second

amended complaint, as in an original complaint, each claim and the

involvement of each defendant must be sufficiently alleged. Any

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amended pleading which fails to provide the necessary factual

description will likely be dismissed.

Plaintiff is forewarned that the failure to file a second

amended complaint which complies with this order will result in a

recommendation that this action be dismissed.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants’ motion to dismiss is granted;

2. Plaintiff’s amended complaint is dismissed;

3. Plaintiff is granted thirty (30) days from the date of

service of this order to file a second amended complaint that

complies with the Federal Rules of Civil Procedure and the Local

Rules of Practice; the second amended complaint, if any, must bear

the docket number assigned this case and must be labeled “Second

Amended Complaint.” Plaintiff must file an original and two copies

of the second amended complaint; and

4. Plaintiff’s motion for leave to file a second amended

complaint (Doc. no. 57) is denied as moot and the July 8, 2005,

hearing on that motion is vacated.

DATED: June 29, 2005.

DAD:th

ddad1\orders.prose\robinson1888.mtd.oah

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