Davis v. Schroeder et al

Filing 16

ORDER signed by Magistrate Judge Carolyn K. Delaney on 04/12/12 ordering that the second amended complaint ( 14 , exhibit 1) is dismissed for the reasons discussed above, with leave to file a third amended complaint not longer than 20 pages 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,

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Plaintiff,
vs.
SCHROEDER, et al.,
Defendants.

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No. CIV S-10-2972 MCE CKD P

ORDER
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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed his

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original complaint on November 4, 2010, seeking relief under 42 U.S.C. § 1983. On May 16,

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2011, he filed an Amended Complaint, which was dismissed on October 11, 2011 with leave to

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amend. (Dkt. Nos. 8, Exhibit 1; 13.) On November 4, 2011, plaintiff filed a Second Amended

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Complaint (SAC). (Dkt. No. 14, Exhibit 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.

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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, the SAC does not cure the defects of the Amended Complaint, as described

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in the court’s October 11, 2011 order. In brief, it does not contain a “short and plain” statement

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of the claim as required by Rule 8 of the Federal Rules of Civil Procedure. Instead, plaintiff has

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submitted another lengthy (over 70 pages) pleading in which he makes numerous, unrelated

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allegations (including retaliation, medical indifference, denial of exercise, and mail fraud) against

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various defendants. Accordingly, plaintiff’s complaint will be dismissed and he will be granted

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one final chance to file an amended complaint that states a cognizable claim and meets the

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requirements of Rule 8 pleading. This Third Amended Complaint will be limited to 20 pages.

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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, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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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.

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In accordance with the above, IT IS HEREBY ORDERED that the Second

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Amended Complaint (Dkt. No. 14, Exhibit 1) is dismissed for the reasons discussed above, with

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leave to file a Third Amended Complaint not longer than 20 pages within thirty days from the

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date of service of this order. Failure to file an amended complaint will result in a

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recommendation that the action be dismissed.

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Dated: April 12, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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davi2972.SAC

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