United States District Court, E.D. Washington
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART AND GRANTING OPPORTUNITY TO FILE SECOND AMENDED COMPLAINT OR TO VOLUNTARILY DISMISS
THOMAS O. RICE, UNITED STATES DISTRICT JUDGE.
BEFORE THE COURT is a Report and Recommendation to dismiss this action for failure to state a claim upon which relief may be granted (ECF No. 9). On March 25, 2015, Plaintiff was granted the opportunity to amend his complaint (ECF No. 7). When Plaintiff did not amend or voluntarily dismiss, Magistrate Judge Rodgers recommended dismissal on May 28, 2015.
Rather than filing objections, Plaintiff submitted a First Amended Complaint (ECF No. 10) on June 10, 2015. Because Plaintiff is proceeding pro se the Court will liberally construe this document as his “objections” to the Report and Recommendation. After reviewing Plaintiff’s submissions, however, the Court finds that he has failed to articulate any basis to reject the Report and Recommendation. In addition, the Court finds that the First Amended Complaint fails to state a claim upon which relief may be granted.
For the reasons set forth by Magistrate Judge Rodgers, IT IS ORDERED that the Report and Recommendation (ECF No. 9) is ADOPTED in part and the initial complaint (ECF No. 6) is DISMISSED. However, because of Plaintiff’s pro se status, the Court will liberally grant him the opportunity to file a Second Amended Complaint to cure the deficiencies of the First Amended Complaint set forth below. Failure to do so will result in the dismissal of this action for failure to state a claim. This may affect Plaintiff’s future ability to proceed in forma pauperis under 28 U.S.C. § 1915(g). In the alternative, Plaintiff may file a motion to voluntarily dismiss.
FIRST AMENDED COMPLAINT
The First Amended Complaint, consisting of 30 pages, omits State of Washington and Okanogan County as Defendants and adds nine Sheriff’s Deputies. As a general rule, “an amended complaint supersedes the original complaint and renders it without legal effect.” Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012). Therefore, “[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), overruled in part by Lacey, 693 F.3d at 928 (any claims voluntarily dismissed are considered to be waived if not repled). Furthermore, Defendants not named in an amended complaint are no longer defendants in the action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, the Defendants State of Washington and Okanogan County have been terminated from this action and Defendants Dave Rodriguez, Noah Stewart, Bob Heyen, Kreg Sloan, Debbie Behymer, Terry Shrable, Isaiah Holloway, Mitzie Green, and Eric Mudgett have been added.
Plaintiff indicates that he did not file any grievances concerning the facts in his complaint because when he attempted to obtain a grievance form, an unidentified officer would not give him the form. He does not state when this occurred. Because there are multiple claims alleged in the First Amended Complaint, occurring in and out of the Okanogan County Jail, it is unclear for which incident Plaintiff sought a grievance form.
A prisoner may not bring a lawsuit with respect to prison conditions under § 1983 unless all available administrative remedies have been exhausted. 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). A prisoner must complete the administrative review process in accordance with the applicable rules. Woodford v. Ngo, 548 U.S. 81, 92 (2006). Under Woodford, there must be proper exhaustion, which means following the steps set out in the grievance procedure. Id.
Plaintiff should note that a failure to exhaust any available administrative remedies would be cause for dismissal of the action. Exhaustion must precede the filing of the complaint and compliance with the statute is not achieved by satisfying the exhaustion requirement during the course of an action. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
Section 1983 requires a claimant to prove (1) a person acting under color of state law (2) committed an act that deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). A person deprives another “of a constitutional right, within the meaning of section 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 [the plaintiff complains].” Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) (brackets in the original), abrogated in part on other grounds, Farmer v. Brennan, 511 U.S. 825 (1994); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
A complaint must set forth the specific facts upon which the plaintiff relies in claiming the liability of each defendant. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Even a liberal interpretation of a civil rights complaint may not supply essential elements of a claim that the plaintiff failed to plead. Id. at 268. To establish liability pursuant to § 1983, Plaintiff must set forth facts demonstrating how each Defendant caused or personally participated in causing a deprivation of Plaintiff’s protected rights. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff has made no allegations against Karl F. Sloan, Frank T. Rogers, Eric Mudgett, Noah ...