Dustin v. Gipson et al

Filing 22

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 06/08/2014. Amended Complaint due by 7/14/2014. (Attachments: # 1 Amended Complaint Form)(Flores, E)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

DALE OWEN DUSTIN,
Plaintiff,

11
12

GIPSON, et al.,

14

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

13

Case No. 1:14-cv-00757 AWI DLB

Defendants.
_____________________________________/

THIRTY-DAY DEADLINE

15
16

Plaintiff Dale Owen Dustin (“Plaintiff”) is a California state prison inmate proceeding pro

17 se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this
18 action in the Northern District of California. The action was transferred to this Court on May 16,
19 2014. Plaintiff appears to name over 75 Defendants.
20 A.

SCREENING STANDARD

21

The Court is required to screen complaints brought by prisoners seeking relief against a

22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
26 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
27 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
28 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain “a short and plain statement of the claim showing that the

1

2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing
5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual
6 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550
7 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
8

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

9 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
10 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
11 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions
12 or omissions of each named defendant to a violation of his rights; there is no respondeat superior
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609
F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.
2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a
plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,
969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility
standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
B.

DISCUSSION
Plaintiff is incarcerated and he is representing himself in this action. Under those

circumstances, the Court is lenient in overlooking technical and other errors. However, Plaintiff’s
complaint is approximately 38 pages of illegible handwriting. Plaintiff’s failure to leave spaces
between his words and to double-space his sentences, as well as his very small writing, renders his
complaint virtually illegible. Plaintiff is required to submit filings which are “clearly legible.”
Local Rule 130(b). In submitting an amended complaint in compliance with this order, Plaintiff is
required to leave spaces between his words and to double-space his sentences. Local Rule 130(c).
The failure to do so will result in an order striking the amended complaint from the record.

28
2

1
As Plaintiff’s complaint is not legible, the Court cannot determine the nature of his

2

3 complaints.
4 C.

CONCLUSION AND ORDER

5

Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

6 each named Defendant did that led to the deprivation of Plaintiff’s federal rights and liability may
7 not be imposed on supervisory personnel under the theory of mere respondeat superior, Iqbal, 556
8 U.S. at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct.
9 2101 (2012). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a
10 right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).
11

Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa

12 County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without
13 reference to the prior or superceded pleading,” Local Rule 220.
14

Accordingly, it is HEREBY ORDERED that:

15

1.

Plaintiff’s complaint is dismissed, with leave to amend;

16

2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

17

3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

18 amended complaint; and
19

4.

If Plaintiff fails to file an amended complaint in compliance with this order, this

20 action will be dismissed, with prejudice, for failure to state a claim.
21
22
23
24

IT IS SO ORDERED.
Dated:

/s/ Dennis

June 8, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

25
26
27
28
3