Smith v. Allison et al

Filing 14

ORDER DISMISSING COMPLAINT for Violation of Fed. R. Civ. P. 8 WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 12/13/2012. First Amended Complaint due within thirty (30) days. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,

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Plaintiff,

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Case No. 1:10-cv-01814 LJO JLT (PC)
ORDER DISMISSING COMPLAINT
FOR VIOLATION OF FED. R. CIV. P. 8

vs.
(Doc. 1)

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K. ALLISON, et al.,

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Defendants.

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

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action pursuant to 42 U.S.C. § 1983.

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I.

Screening Requirement

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When an individual seeks to proceed in forma pauperis, the Court is required to review

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the complaint and identify “cognizable claims.” See 28 U.S.C § 1915(a)-(b). The Court must

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dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or fails to state a

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claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is

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immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A claim is frivolous

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“when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not

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there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S.

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25, 32-33 (1992).

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To state a claim on which relief may be granted, plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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A district court must liberally construe a pleading filed by a self-represented litigant to determine

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if it states a claim and, before dismissal, outline the deficiencies in the complaint and give the

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plaintiff an opportunity to amend unless the deficiencies cannot be cured. See Lopez v. Smith,

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203 F.3d 1122, 1130-31 (9th Cir. 2000).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). Accordingly, the court may dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory. Neitzke, 490 U.S. at 327.

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In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that

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he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii)

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that the violation was proximately caused by a person acting under color of state law. See

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Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is

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satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in

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another's affirmative act, or omitted to perform an act which he was legally required to do that

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caused the deprivation complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981)

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(quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).

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To plead under § 1983, Plaintiff must comply with Federal Rule of Civil Procedure

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8(a)(2), which requires only “‘a short and plain statement of the claim showing that the pleader is

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entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the

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grounds upon which it rests[.]’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S.

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41, 47 (1957)). Nevertheless, Plaintiff’s obligation to provide the grounds of entitlement to relief

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under Rule 8(a)(2) requires more than “naked assertions,” “labels and conclusions,” or “formulaic

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recitation[s] of the elements of a cause of action.” Twombly, 550 U.S. at 555-57. The complaint

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“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

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on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting
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Twombly, 550 U.S. at 570) (emphasis added).

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II.

The complaint

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Plaintiff initiated this action by filing a 171-page document entitled, “Complaint.” (Doc.

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1) The complaint is made up of pages of allegations interspersed with exhibits, memoranda of

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legal authorities, lengthy quotations of state law statutes and regulations, prison-submitted

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complaint and other legal petitions. Also, the allegations are handwritten in a manner in which

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capital letters are used indiscriminately, such that it makes it difficult to read and to determine

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when a sentence ends. Under no reasonable interpretation of Fed. R. Civ. P. rule 8, can this

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complaint be found to comply with the requirement to provide a short, plain statement.

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The Court lacks the time and the resources to cull through 171 pages to try to figure out

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what, exactly, Plaintiff is claiming. Thus, the Court will order the complaint dismissed. The

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Court will grant Plaintiff one final opportunity to attempt to plead a cognizable claim. See Noll

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v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (“A pro se litigant must be given leave to

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amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.”) (internal quotations omitted).

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Plaintiff’s first amended complaint, including any exhibits attached thereto, SHALL NOT

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exceed 20 pages. Plaintiff must provide a short, plain statement that gives the defendant fair

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notice of what the Plaintiff’s claim is and the facts upon which his claim rests. Swierkiewicz v.

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Sorema N. A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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This means that Plaintiff must briefly describe who the Defendant is, what the Defendant did,

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when the Defendant did this and how the Defendant’s actions violated Plaintiff’s rights. Each

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Defendant is only liable for the injuries that his/her own actions cause so the complaint must set

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forth the actions of each defendant, assuming Plaintiff intends to sue more than one person.

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Plaintiff is advised that he need not cite legal authorities or attach exhibits to his complaint.

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Plaintiff is cautioned that in his first amended complaint, he may not allege unrelated

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claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Moreover, Plaintiff is advised that once he files an amended complaint, his original pleadings are

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superceded and no longer serve any function in the case. See Loux v. Rhay, 375 F.2d 55, 57 (9th
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Cir. 1967). Thus, the first amended complaint must be “complete in itself without reference to

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the prior or superceded pleading.” Local Rule 220. “All causes of action alleged in an original

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complaint which are not [re-]alleged in an amended complaint are waived.” King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987) (citations omitted).

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ORDER

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Many of the complaints filed in the most complex cases brought in this Court do not

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exceed 15 pages. The idea that Plaintiff needs 171 pages to do the same, is patently unacceptable.

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The Court has no doubt that Plaintiff can allege the “who, what, when, where and how” of his

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situation in less than 20 pages. Therefore, the Court ORDERS:

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Plaintiff complaint is DISMISSED with 30 days leave to amend;

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Plaintiff’s first amended complaint, including any exhibits attached thereto,

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SHALL NOT exceed 20 pages.
Plaintiff is advised that his failure to comply with the Court’s orders SHALL result

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in a recommendation dismissing this case.

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IT IS SO ORDERED.
Dated:

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December 13, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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