1 2 3 4 5 6 7 10 11 CUONG HUY DAO, No. 2:23-CV-1242-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 DUSTIN CAMPBELL, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s third amended complaint, ECF No. 16. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 26 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 27 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 1 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 7 required by law when the allegations are vague and conclusory. 8 10 A. Procedural History 11 Plaintiff initiated this action with a pro se complaint filed on June 28, 2023. See 12 ECF No. 1. On July 14, 2023, before the Court could address the sufficiency of Plaintiff's 13 complaint, Plaintiff filed a first amended complaint as of right. See ECF No. 9. On May 20, 2024, 14 the Court issued an order dismissing the first amended complaint with leave to amend. See ECF 15 No. 13. On June 17, 2024, Plaintiff filed a second amended complaint asserting claims against 16 eighteen Defendants. See ECF No. 14. On August 29, 2024, the Court issued an order finding that 17 Plaintiff’s complaint pled cognizable claims against ten of the Defendants but failed to assert 18 cognizable claims against the remaining eight Defendants. See ECF No. 15. The Court gave 19 Plaintiff leave to amend to cure the deficiencies identified by the order. See id. On September 30, 20 2024, Plaintiff filed his third amended complaint. See ECF No. 16. 21 B. Plaintiff’s Allegations 22 Plaintiff’s third amended complaint copies the language of the Court’s August 29, 23 2024, order that Plaintiff’s “second amended complaint states potentially cognizable claims 24 against Defendants Rios, Campbell, Karschner, Mayhew, Nguyen, Dhillion, Davis, Mascadri, 25 Archie, and Strickland.” Id. at 2. Plaintiff’s third amended complaint further repeats the Court’s 26 order that “[t]he second amended complaint, however, is defective as to Defendants Darling, 27 Stuhr, Smith, Vitali, Konrad, and Lynch” and “as to Defendants Anderson and Stigelmayer.” Id. 28 Plaintiff’s third amended complaint then proceeds to articulate claims against the latter set of 1 Defendants—Darling, Stuhr, Smith, Vitali, Konrad, Lynch, Anderson, and Stigelmayer— 2 reflecting Plaintiff’s stated “wish to continue to pursue claims against supervisory defendants.” 3 See id. at 3-9. Plaintiff’s third amended complaint does not refer to the first set of Defendants— 4 Rios, Campbell, Karschner, Mayhew, Nguyen, Dhillion, Davis, Mascadri, Archie, and 5 Strickland—except in passing by noting that some of these Defendants were subordinate to and/or 6 under the control of the supervisory defendants. See, e.g., id. at 4. 7 9 The Court finds that the third amended complaint is not complete and would 10 require the Court to impermissibly refer to another pleading in order to make it complete. Plaintiff 11 will be provided an opportunity to amend to include all his allegations as against all Defendants. 12 An amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 13 963 F.2d 1258, 1262 (9th Cir. 1992). If a plaintiff amends the complaint, the Court cannot refer to 14 the prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. 15 An amended complaint must be complete in itself without reference to any prior pleading. See id. 16 Plaintiff’s amended complaint must, therefore, allege in specific terms how each named 17 defendant is involved and must set forth some affirmative link or connection between each 18 defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 19 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 20 In his third amended complaint, Plaintiff fails to allege in specific terms how 21 Defendants Rios, Campbell, Karschner, Mayhew, Nguyen, Dhillion, Davis, Mascadri, Archie, and 22 Strickland are involved. Instead, Plaintiff’s third amended complaint merely seeks to incorporate 23 by reference Plaintiff’s second amended complaint by quoting verbatim the Court’s order finding 24 that the second amended complaint stated potentially cognizable claims against these Defendants. 25 Plaintiff will be directed to file a complete third amended complaint. 26 /// 27 /// 28 /// 2 Because it is possible that the deficiencies identified in this order may be cured by 3 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 4 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is cautioned to take careful note of the above 5 mentioned rules governing amended complaints, namely, that an amended complaint supersedes 6 the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), that the Court 7 cannot refer to the prior pleading in order to make Plaintiff's amended complaint complete, see 8 Local Rule 220, and that an amended complaint must be complete in itself without reference to 9 any prior pleading. See id. 10 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 11 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 12 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
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1 2 3 4 5 6 7 10 11 CUONG HUY DAO, No. 2:23-CV-1242-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 DUSTIN CAMPBELL, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s third amended complaint, ECF No. 16. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was 22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 26 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 27 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 1 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 7 required by law when the allegations are vague and conclusory. 8 10 A. Procedural History 11 Plaintiff initiated this action with a pro se complaint filed on June 28, 2023. See 12 ECF No. 1. On July 14, 2023, before the Court could address the sufficiency of Plaintiff's 13 complaint, Plaintiff filed a first amended complaint as of right. See ECF No. 9. On May 20, 2024, 14 the Court issued an order dismissing the first amended complaint with leave to amend. See ECF 15 No. 13. On June 17, 2024, Plaintiff filed a second amended complaint asserting claims against 16 eighteen Defendants. See ECF No. 14. On August 29, 2024, the Court issued an order finding that 17 Plaintiff’s complaint pled cognizable claims against ten of the Defendants but failed to assert 18 cognizable claims against the remaining eight Defendants. See ECF No. 15. The Court gave 19 Plaintiff leave to amend to cure the deficiencies identified by the order. See id. On September 30, 20 2024, Plaintiff filed his third amended complaint. See ECF No. 16. 21 B. Plaintiff’s Allegations 22 Plaintiff’s third amended complaint copies the language of the Court’s August 29, 23 2024, order that Plaintiff’s “second amended complaint states potentially cognizable claims 24 against Defendants Rios, Campbell, Karschner, Mayhew, Nguyen, Dhillion, Davis, Mascadri, 25 Archie, and Strickland.” Id. at 2. Plaintiff’s third amended complaint further repeats the Court’s 26 order that “[t]he second amended complaint, however, is defective as to Defendants Darling, 27 Stuhr, Smith, Vitali, Konrad, and Lynch” and “as to Defendants Anderson and Stigelmayer.” Id. 28 Plaintiff’s third amended complaint then proceeds to articulate claims against the latter set of 1 Defendants—Darling, Stuhr, Smith, Vitali, Konrad, Lynch, Anderson, and Stigelmayer— 2 reflecting Plaintiff’s stated “wish to continue to pursue claims against supervisory defendants.” 3 See id. at 3-9. Plaintiff’s third amended complaint does not refer to the first set of Defendants— 4 Rios, Campbell, Karschner, Mayhew, Nguyen, Dhillion, Davis, Mascadri, Archie, and 5 Strickland—except in passing by noting that some of these Defendants were subordinate to and/or 6 under the control of the supervisory defendants. See, e.g., id. at 4. 7 9 The Court finds that the third amended complaint is not complete and would 10 require the Court to impermissibly refer to another pleading in order to make it complete. Plaintiff 11 will be provided an opportunity to amend to include all his allegations as against all Defendants. 12 An amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 13 963 F.2d 1258, 1262 (9th Cir. 1992). If a plaintiff amends the complaint, the Court cannot refer to 14 the prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. 15 An amended complaint must be complete in itself without reference to any prior pleading. See id. 16 Plaintiff’s amended complaint must, therefore, allege in specific terms how each named 17 defendant is involved and must set forth some affirmative link or connection between each 18 defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 19 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 20 In his third amended complaint, Plaintiff fails to allege in specific terms how 21 Defendants Rios, Campbell, Karschner, Mayhew, Nguyen, Dhillion, Davis, Mascadri, Archie, and 22 Strickland are involved. Instead, Plaintiff’s third amended complaint merely seeks to incorporate 23 by reference Plaintiff’s second amended complaint by quoting verbatim the Court’s order finding 24 that the second amended complaint stated potentially cognizable claims against these Defendants. 25 Plaintiff will be directed to file a complete third amended complaint. 26 /// 27 /// 28 /// 2 Because it is possible that the deficiencies identified in this order may be cured by 3 amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 4 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is cautioned to take careful note of the above 5 mentioned rules governing amended complaints, namely, that an amended complaint supersedes 6 the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), that the Court 7 cannot refer to the prior pleading in order to make Plaintiff's amended complaint complete, see 8 Local Rule 220, and that an amended complaint must be complete in itself without reference to 9 any prior pleading. See id. 10 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 11 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 12 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 13 each named defendant is involved and must set forth some affirmative link or connection between 14 each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 15 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 16 Notwithstanding Plaintiff’s request that the Court proceed with Plaintiff’s second 17 amended complaint should the Court find that his third amended complaint fails to allege any 18 cognizable claims against the supervisory defendants, see ECF No. 16, at 10, Plaintiff is 19 cautioned that, if a further amended complaint does not include the allegations previously found 20 to be cognizable in the second amended complaint, the Court will deem those claims abandoned 21 and proceed only as to those claims outlined in the amended pleading. If no amended complaint is 22 filed within the time allowed therefor, the Court will proceed only as to those claims outlined in 23 the third amended complaint. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a fourth amended 2 | complaint within 30 days of the date of service of this order. 3 || Dated: February 6, 2025 4 Seo DENNIS M. COTA 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28