Phelps v. Mimms et al

Filing 15

Screening ORDER DISMISSING First Amended Complaint with Leave to Amend (Doc. 14). (1) Plaintiff's First Amended Complaint is dismissed for failure to state a cognizable claim; (2) Within thirty (30) days from the date of service of this order, Plaintiff shall file a Second Amended Complaint; (3) If Plaintiff fails to file a Second Amended Complaint in compliance with this order, this action will be dismissed for failure to obey a court order. signed by Magistrate Judge Barbara A. McAuliffe on 8/5/2014. (Herman, H)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 TONY PHELPS, Sr. 10 11 Plaintiffs, v. 12 MARGARET MIMMS, JERRY DYER, 13 Defendant. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:14-cv-251-AWI-BAM SCREENING ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (Doc. 14) THIRTY-DAY DEADLINE 16 Plaintiff Tony Phelps, Sr. (“Plaintiff”) is proceeding pro se and in forma pauperis in this 17 civil rights action pursuant to 42 U.S.C. § 1983. After dismissal of his initial complaint alleging 18 excessive force and deliberate indifference to medical needs pursuant to 28 U.S.C. § 1915(a), 19 Plaintiff filed a First Amended Complaint (“FAC”) on June 6, 2014. (Doc. 14). Although 20 unclear, Plaintiff’s one-paragraph FAC states facts possibly related to Plaintiff’s initial 21 complaint. On its own, Plaintiff’s FAC is not complete without reference to another pleading and 22 fails to include factual allegations supporting a cognizable claim for relief. 23 discussed below, Plaintiff’s FAC is dismissed with leave to amend. Therefore, as 24 Screening Requirement 25 The Court is required to screen complaints brought by persons proceeding in pro per. 28 26 U.S.C. § 1915A(a). Plaintiff’s Complaint, or any portion thereof, is subject to dismissal if it is 27 frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks 28 1 1 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 2 28 U.S.C. § 1915(e)(2)(B)(ii). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 7 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 8 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 9 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 10 (internal quotation marks and citation omitted). 11 While persons proceeding in pro se actions are still entitled to have their pleadings 12 liberally construed and to have any doubt resolved in their favor, the pleading standard is now 13 higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive 14 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to 15 allow the Court to reasonably infer that each named defendant is liable for the misconduct 16 alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United 17 States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant 18 acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 19 plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 20 572 F.3d at 969. 21 22 23 Plaintiff’s Allegations Plaintiff is currently incarcerated in the Fresno County Jail. In his first amended complaint, Plaintiff alleges as follows: 24 25 26 27 28 Police officer got on the witness stand in my court hearing and stated that I had died and they done an death test to confirm his statements. Please read my court transcripts where police officer John Doe G-1 made the above statements to the Judge and D.A. in courtroom #33 I had no thought nor idea that I had died while I was in the care of said officer, until I went to court and said officer stated on the witness stand that I had died when where and how I do not know. [all sic]. 2 1 Plaintiff seeks $300,000.00 in damages. 2 DISCUSSION 3 4 Plaintiff’s FAC complaint does not clearly identify a cause of action. However, based on the allegations in Plaintiff’s FAC, the Court speculates that he wishes to amend or add additional 5 factual allegations supporting his initial cause of action for deliberate indifference to serious 6 medical needs. (Doc. 13 at 5). Although the Court granted Plaintiff leave to amend in its initial 7 screening order, the Court informed plaintiff that any amended complaint must be complete in 8 itself without reference to any prior pleading. (Doc. 13 at 8). Despite this instruction, Plaintiff 9 failed to write or type an amended complaint that is complete in itself without reference to any 10 earlier filed complaint. See L.R. 220. Therefore, as discussed more fully below, Plaintiff’s FAC 11 fails to comply with Federal Rule of Civil Procedure 8(a)(1) and his attempt to amend his 12 complaint has failed to comply with Local Rule 220. Fed. R. Civ. P. 8(a)(1); E.D. Cal., L.R. 13 220. 14 A. 15 Plaintiff Fails to Plead a Claim It is difficult to ascertain the nature of Plaintiff’s claims, but it appears that in an effort to 16 allege the seriousness of an alleged injury, Plaintiff’s first amended complaint states that officer 17 John Doe G-1 admitted that Plaintiff died while he was in the officer’s care. No other facts are 18 pled. 19 20 21 22 23 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to state a 24 claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 25 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 26 Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969. 27 28 3 1 Plaintiff’s brief, cursory FAC fails to identify any federal Constitutional right or federal 2 law under which Plaintiff is seeking relief. To the extent that Plaintiff is seeking to address 3 purported violations of his civil rights under 42 U.S.C. § 1983, such claims must be premised on 4 a violation of the Constitution or other federal rights. Nurre v. Whitehead, 580 F.3d 1087, 1092 5 (9th Cir. 2009). A properly pled complaint must provide, in part, a “short and plain statement” of 6 Plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, 7 Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 8 Due to Plaintiff’s sparse factual pleadings and failure to identify any specific federal right 9 or law that was violated, it is “very difficult to discern what precise claims plaintiff actually 10 wishes to raise, and which factual allegations support those claims.” Futrell v. Sacramento Cnty. 11 Dep’t. of Health & Human Servs., No. 2:10-CV-2424 JAM KJN, 2011 U.S. Dist. LEXIS 19667, 12 2011 WL 666503, at *2 (E.D. Cal. Feb. 14, 2011). To remedy these problems, Plaintiff needs to 13 “clearly identify the claims that he wishes to pursue and provide succinct and coherent factual 14 allegations supporting each claim.” Futrell, 2011 U.S. Dist. LEXIS 19739 at *5. Plaintiff should 15 also consider identifying each claim by an underlined “header,” and conveying the factual 16 allegations supporting each claim under that specific header. 17 Further, plaintiff does not link any defendant to the alleged wrongful conduct. Plaintiff 18 must allege an actual connection or link between the actions of the defendants and the 19 deprivation alleged to have been suffered by Plaintiff. See Monell v. Department of Social 20 Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 21 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another 22 to the deprivation of a constitutional right, within the meaning of section 1983, if he does an 23 affirmative act, participates in another’s affirmative acts or omits to perform an act which he is 24 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 25 588 F.2d 740, 743 (9th Cir. 1978). 26 27 Plaintiff’s allegations do not link any defendant to a specific violation. On amendment, Plaintiff must specify what each defendant allegedly did to violate his federal rights. 28 4 1 2 B. Amended Complaint Must Be Complete in Itself Without Reference to Any Prior Pleading 3 Further, Plaintiff’s First Amended Complaint does not comply with the requirement that 4 it be written or typed so that it is complete in itself without reference to any earlier filed 5 complaint. E.D. Cal., L.R. 220. Eastern District Local Rule 220 requires that an amended 6 complaint be complete in itself. Plaintiff may not amend his complaint in a piecemeal fashion by 7 filing additional supporting factual allegations that are intended to be read with his dismissed 8 complaint. An amended complaint supersedes any earlier filed complaint, and once an amended 9 complaint is filed, the earlier filed complaint no longer serves any function in the case. See 10 Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “amended complaint supersedes 11 the original, the latter being treated thereafter as non-existent.”) (quoting Loux v. Rhay, 375 F.2d 12 55, 57 (9th Cir. 1967)). 13 CONCLUSION AND ORDER 14 Accordingly, Plaintiff’s First Amended Complaint is DISMISSED WITHOUT 15 PREJUDICE AND WITH LEAVE TO AMEND. Plaintiff will be given a final opportunity to 16 amend the deficiencies of the complaint. If Plaintiff chooses to file a Second Amended 17 Complaint, it should contain an explanation of which federal rights or laws were allegedly 18 breached, how those breaches occurred, and set forth facts establishing the basis of Plaintiff’s 19 claims. 20 Plaintiff is again advised that an amended complaint supercedes the original complaint. 21 See Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc). The amended 22 complaint must be “complete in itself without reference to the prior or superceded pleading.” 23 Local Rules of the United States District Court, Eastern District of California, Rule 220. Once 24 Plaintiff files an amended complaint, the original pleading no longer serves any function in the 25 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 26 involvement of each defendant must be sufficiently alleged. If Plaintiff fails to file a second 27 amended complaint or fails to cure the deficiencies identified above, the Court will recommend 28 that the complaint be dismissed with prejudice. 5 1 Plaintiff’s amended complaint fails to state a cognizable claim as required by Federal 2 Rule of Civil Procedure 8 and violates Local Rule 220. As noted above, the Court will provide 3 Plaintiff with a final opportunity to file a second amended complaint to cure the identified 4 deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the 5 nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 6 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 7 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 8 the named defendant did that led to the deprivation of Plaintiffs’ constitutional rights, Iqbal, 556 9 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must 10 be [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 11 (citations omitted). 12 13 Based on the foregoing, it is HEREBY ORDERED that: 1. Plaintiff’s First Amended Complaint is dismissed for failure to state a cognizable 14 claim; 15 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 16 Second Amended Complaint; 17 18 3. order, this action will be dismissed for failure to obey a court order. 19 20 If Plaintiff fails to file a Second Amended Complaint in compliance with this IT IS SO ORDERED. 21 22 Dated: /s/ Barbara August 5, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?