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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CLETE REO HART,

Plaintiff, No. CIV S-04-1424 MCE DAD P

vs.

CALIFORNIA MEDICAL FACILITY, 

et al.,

Defendants. ORDER

 /

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

rights action pursuant to 42 U.S.C. § 1983. Before the court is plaintiff’s amended complaint. 

Plaintiff was advised in the court’s July 1, 2005 order that 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). Plaintiff was also advised that he

must clearly identify his constitutional claims and must allege in specific terms how each named

defendant is involved in the claimed constitutional deprivation. Plaintiff has failed to follow

these directives in his amended complaint. Therefore, the court will dismiss the amended

complaint and provide plaintiff with one final opportunity to clarify his constitutional claims and

to provide sufficient allegations with respect to the involvement of each named defendant. 

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 The court is skeptical of plaintiff’s contention that funds from his trust account were 1

being used as part of informant activities on his part being carried out at the direction of prison

officials.

 The pages of plaintiff’s amended complaint are not numbered in numerical order and 2

begins with a page labeled “6". Therefore, the court will refer to the pages of the amended

complaint in numerical order, beginning with page one for the first page.

2

Below, the court will also provide plaintiff with the legal standards applicable to

each of the claims which he is apparently attempting to pursue. 

DEPRIVATION OF PROPERTY

Plaintiff alleges that he was asked to be an informant and to provide information

to prison officials regarding illegal drug dealings within the California Medical Facility. He

alleges that he provided such information to defendants correctional officer Park and CCI Stubbs,

and had $100 withdrawn from his trust account for use in a drug sale as part of his efforts. 

Plaintiff claims that he then requested a stop payment on the $100 withdrawal but his request was

not honored. Plaintiff apparently seeks the return of these funds. This dispute over the loss of 1

funds is not cognizable. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.1994) (holding that

deprivation of a prisoner's property fails to state a claim under section 1983 because California

state law provides an adequate post-deprivation remedy); see also Hudson v. Palmer, 468 U.S.

517, 533 (1984). Should plaintiff elect to file a second amended complaint, he should not

attempt to renew this claim. 

FALSE RULE VIOLATIONS

Plaintiff alleges that defendant Lt. Roszko found plaintiff guilty of rule violations

“that were false, lies, and fraud, involving inmates, staff, doctors, and officers throughout the

institution.” (Am. Comp., at 8 .) According to plaintiff’s allegations, defendant Cry fraudulently

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rejected plaintiff’s appeals. (Id. at 9.) In his second amended complaint, plaintiff must explain

the nature of the rule violations in question, provide factual allegations to support his contention

that the disciplinary actions were false and fraudulent, and explain the disposition of the rule

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violations as well as whether he lost time credits or other privileges. To adequately state a due

process claim under the Fourteenth Amendment, plaintiff must identify the protected liberty

interest and the procedural protections he was not provided. Plaintiff is advised that while

inmates retain certain due process rights in prison disciplinary hearings, Wolff v. McDonnell,

418 U.S. 539, 563-71 (1974), state laws and prison regulations that contain merely procedural

requirements, even if mandatory, do not give rise to a constitutionally cognizable liberty interest. 

Toussaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir. 1987). Moreover, the United States

Supreme Court has held that state regulations give rise to a liberty interest protected by the Due

Process Clause of the federal constitution only where the regulations pertain to "freedom from

restraint" that "imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). 

FAILURE TO PROCESS INMATE GRIEVANCES

Plaintiff alleges that on several occasions he attempted to use the grievance

process but that his grievances were not processed, were lost, went unanswered or were denied. 

This claim is not cognizable because “inmates lack a separate constitutional entitlement to a

specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)

(citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). In addition, the regulations that

establish California’s inmate grievance system merely procedural requirements which cannot

form the basis of a constitutionally cognizable liberty. Washington v. Woodford, No. C 05-2889

SI(PR), 2005 WL 3096116, at *3-4 (N.D.Cal., Nov. 14, 2005) (citing Smith v. Noonan, 992 F.2d

987, 989 (9th Cir.1993) and Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.1996)). Plaintiff

should not attempt to renew this claim in any second amended complaint filed with the court

MAIL TAMPERING

Plaintiff claims that on a regular basis his outgoing mail has been returned

because it was misaddressed, and that he has had problems receiving his magazines and legal

mail. To the extent that plaintiff may be attempting to raise a claim that he is being denied

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access to courts, he must also allege facts demonstrating that he suffered an actual injury. Lewis

v. Casey, 518 U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Vandelft v.

Moses, 31 F.3d 794, 796 (9th Cir. 1994). “Actual injury” means a “specific instance in which an

inmate was actually denied access to the courts.” Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.

1989).

CONSPIRACY

Plaintiff contends that for 46 years, there has been a “conspiracy against my

rights[.]” (Am. Compl. at 10.) It may be that plaintiff is thereby attempting to state a claim that

he has been victimized by an unlawful conspiracy. Plaintiff is advised that in order to prevail on

a conspiracy claim under § 1983, a plaintiff must allege and prove some deprivation of a

constitutional right which resulted from the alleged conspiracy. See Woodrum v. Woodward

County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989). “A conspiracy occurs only when the parties

have reached ‘a unity of purpose or a common design and understanding, or a meeting of minds

in an unlawful arrangement.’” William Inglis & Sons Baking Co. v. ITT Continental Baking

Co., 668 F.2d 1014, 1055 (9th Cir. 1981) (quoting American Tobacco Co. v. United States, 328

U.S. 781, 809-10 (1946)). Thus, plaintiff must allege facts demonstrating that there was an

agreement by the defendants to violate his constitutional rights. See Woodrum, 866 at 1126;

Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). While it is not necessary to allege that each

participant in a conspiracy knew the exact parameters of the plan, they must at least share the

general conspiratorial objective. See Fonda, 707 F.2d at 438; see also Margolis v. Ryan, 140

F.3d 850, 853 (9th Cir. 1998). In his second amended complaint, plaintiff must provide more

detailed factual allegations in support of any such claim. A broad statement that a conspiracy has

existed for 46 years is not sufficient. 

IMPROPER DEFENDANTS

In the court’s July 1, 2005 order, plaintiff was advised that the “Trust Account

Office” and “Mailroom Representatives” were not proper defendants in this action because the

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court could not determine if they were one or more persons and because the description provided

was insufficient to effect service. In his amended complaint, plaintiff has again named these

same defendants. Plaintiff is advised that should he rename these defendants in his second

amended complaint, the court will recommend their dismissal. In addition, plaintiff has named

the California Department of Corrections as a defendant. An action against this agency is not

cognizable. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (suit against state agency is barred

by the Eleventh Amendment). 

LEAVE TO AMEND

If plaintiff chooses to file a second amended complaint, he must allege facts

demonstrating 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 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).

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

v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the

prior 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. 

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

1. Plaintiff’s amended complaint, filed on July 14, 2005, is dismissed. 

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

in a recommendation that this action be dismissed.

3. The Clerk of the Court is directed to provide plaintiff with the court’s form

complaint for a § 1983 claim.

DATED: May 30, 2006.

DAD:4

hart1424.14b

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