(PC) Meza v. Solano County Custody Division/Medical et al

Filing 13

ORDER signed by District Judge Marsha J. Pechman on 4/13/2009 DISMISSING plaintiff's 1 Complaint with leave to amend w/in 30 days from date of this Order. Plaintiff shall complete attached Notice of Amendment and submit original and copy of Amended Complaint. Plaintiff is also ordered to re-submit IFP Application w/in 30 days from date of Order. (Marciel, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 / 16 Plaintiff is a former state prisoner proceeding pro se. Plaintiff seeks relief pursuant 17 to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis ("IFP") pursuant to 28 18 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). However, his situation is complicated by the fact that Plaintiff was released from 22 custody while his IFP application was pending. Therefore, Plaintiff will be ordered to re-apply to 23 proceed IFP under the general provisions of 28 U.S.C. § 1915(a) ­ a blank IFP application form 24 is attached to this order for that purpose. 25 Before Plaintiff's new IFP application may be granted, however, he must also re26 1 ORDER vs. SOLANO COUNTY CUSTODY DIVISION, et al., MARK A. MEZA, Plaintiff, No. 2:08-CV-1004-MJP IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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file his § 1983 complaint in conformity with the ruling which follows. The court is required to screen complaints brought by pro se plaintiffs seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the pro se plaintiff has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, U.S. , 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S.

41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, id. However, "[s]pecific facts are not necessary; the statement [of facts] need only `"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, U.S. , 127 S.Ct. 2197, 2200 (2007) (quoting Bell, slip op. at 7-8, in turn quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 2

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(1974). The court finds the allegations in plaintiff's complaint so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. The court has determined that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint. If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between each defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. 3

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In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff is ordered (if he wishes to proceed) to re-submit an IFP application under the general provisions applicable to all non-incarcerated parties. Plaintiff has 30 days from the date of this order to submit that application. 2. Plaintiff's complaint is dismissed without prejudice. 3. Within 30 days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court: a. The completed Notice of Amendment; and b. An original and one copy of the Amended Complaint. Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "Amended Complaint"; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed. The clerk of the court shall provide Plaintiff with a copy of this order and all attachments.

Dated this 13th day of April, 2009.

A
Marsha J. Pechman U.S. District Judge

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 ____________________________________/ 16 Plaintiff hereby submits the following document in compliance with the court's 17 order filed 18 ______________ 19 DATED: 20 21 22 23 24 25 26 5 Plaintiff Amended Complaint : vs. SOLANO COUNTY CUSTODY DIVISION, et al., NOTICE OF AMENDMENT MARK A. MEZA, Plaintiff, No. 2:08-CV-1004-MJP IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA