Davis v. Schroeder et al

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/11/11 ordering that the amended complaint 8 , exhibit 1 is dismissed for the reasons discussed above, with leave to file a second amended complaint within 30 days from the date of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES L. DAVIS,
Plaintiff,

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No. CIV S-10-2972 MCE CKD P

vs.
SERGEANT SCHROEDER, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks

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relief pursuant to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed

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May 16, 2011. (Dkt. No. 8, Ex. 1.)

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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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
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must

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contain something more...than...a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure

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1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, __ U.S. __, 129

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S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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Fed. R. Civ. P. 8 sets forth general rules of notice pleading in the federal courts.

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See Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992 (2002). Complaints are required to set

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a forth (1) the grounds upon which the court’s jurisdiction rests, (2) a short and plain statement of

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the claim showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Rule 8

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requires only “sufficient allegations to put defendants fairly on notice of the claims against

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them.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Even if the factual elements of

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the cause of action are present, but are scattered throughout the complaint and are not organized
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into a “short and plain statement of the claim,” dismissal for failure to satisfy Rule 8(a)(2) is

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proper. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).

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Here, plaintiff has submitted a 66-page complaint, not including exhibits, that

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purports to allege sixteen claims against numerous defendants. The claims, as listed, cover a

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wide range of alleged violations of constitutional and/or statutory law, including commission of a

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hate crime, denial of insulin shots, mail fraud, conspiracy, violation of the right to due process,

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and retaliation. (Dkt. No. 8, Ex. 1 at 5-7.) Many of these claims appear to be unrelated to one

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another, and it is unduly burdensome to determine which, if any, state a cognizable claim

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pursuant to section 1983. This complaint illustrates the “unfair burdens” imposed by complaints,

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“prolix in evidentiary detail, yet without simplicity, conciseness and clarity” which “fail to

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perform the essential functions of a complaint.” McHenry , 84 F.3d at 1179-80.

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A major flaw of the complaint is that it attempts to bring numerous unrelated

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claims in a single action. Fed. R. Civ. P. 18(a) provides: “A party asserting a claim to relief as an

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original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or

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as alternate claims, as many claims, legal, equitable, or maritime as the party has against an

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opposing party.” “Thus multiple claims against a single party are fine, but Claim A against

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Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George v.

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Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different defendants belong

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in different suits[.]” Id.

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Plaintiff’s complaint will be dismissed and he will be granted leave to file an

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amended complaint within 30 days of service of this order. In an amended complaint, plaintiff

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should not raise many unrelated claims, but rather focus on a few specific claims and describe the

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actions of the individual defendants.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms
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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board

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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

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order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
In accordance with the above, IT IS HEREBY ORDERED that the amended

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complaint (Dkt. No. 8, Ex. 1) is dismissed for the reasons discussed above, with leave to file a

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second amended complaint within thirty days from the date of service of this order. Failure to

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file a second amended complaint will result in a recommendation that the action be dismissed.

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Dated: October 11, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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