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 The court previously has advised plaintiff regarding the standards generally applicable

to the screening of his complaint. For example, a claim is legally frivolous when it lacks an

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ODAY MOUNSAVENG,

Plaintiff, No. CIV S-04-2357 GEB KJM 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 May 20, 2005, plaintiff's complaint was

dismissed with leave to file an amended complaint. Plaintiff has now filed an amended

complaint.

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, among other things, the

prisoner has raised claims that fail to state a claim upon which relief may be granted. 28 U.S.C.

§ 1915A(b)(1),(2).1

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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.

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As previously noted, 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). 

Even applying the standards applicable to pro se pleading, the court finds that the allegations in

plaintiff's amended complaint are still insufficient to state a claim upon which relief can be

granted. In particular, plaintiff must allege with at least some degree of particularity overt acts in

which specific defendants engaged to support plaintiff's claim. Id. In other words, plaintiff must

allege in specific terms how each named defendant is involved and how that involvement is

connected to plaintiff’s claim. This latter requirement is not satisfied by plaintiff’s amended

complaint. 

Plaintiff’s amended complaint must be dismissed. The court will, however, grant

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

complaint, plaintiff is reminded 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 v. Rhay, 375

F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the earlier

pleadings no longer serves any function in the case. Therefore, in a second amended complaint,

as in an original and first amended complaint, each claim and the involvement of each defendant

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2

 Plaintiff is reminded that a second amended complaint must, in and of itself,

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, as noted above,

the second 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).

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must be sufficiently alleged.2

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

1. Plaintiff's amended complaint is dismissed; and

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

second 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 second amended complaint

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; 

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

recommendation that this action be dismissed.

DATED: December 12, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

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moun2357.14amd(6.20.05)

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