Alston v. City of Elk Grove et al

Filing 8

ORDER signed by Magistrate Judge Craig M. Kellison on 6/6/2011 GRANTING plaintiff's 2 Motion to Proceed IFP. CD Alston's 1 Complaint is DISMISSED and he is GRANTED leave to file Amended Complaint within 30 days of date of service for this Order. Plaintiff's 5 Motion to Proceed under pseudonym and 6 Motion to correspond through e-mail are both DENIED. (Marciel, 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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CD ALSTON,

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Plaintiff,

No. CIV S-11-678 KJM CMK (TEMP) PS

vs.
CITY OF ELK GROVE, et al.,

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Defendants.

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ORDER
/

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority

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pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this

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court by Local Rule 302(c)(21).

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Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is

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unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in

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forma pauperis will be granted. 28 U.S.C. § 1915(a).

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if

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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(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.

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In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other

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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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The court finds the allegations in plaintiff's complaint so vague and conclusory

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that it is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The court has determined that the complaint does not contain a short and plain statement

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as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff

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must allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of Fed.

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R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file

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an amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the

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jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil

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Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted

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in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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In the complaint, plaintiff alleges claims arising out of an allegedly unlawful

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arrest. Plaintiff contends she is currently being prosecuted for charges arising out of that arrest.

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It appears plaintiff’s claims may be barred under Heck v. Humphrey, 512 U.S. 477 (1994). In

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Heck, the United States Supreme Court held that a suit for damages on a civil rights claim

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concerning an allegedly unconstitutional conviction or imprisonment cannot be maintained

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absent proof “that the conviction or sentence has been reversed on direct appeal, expunged by

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executive order, declared invalid by a state tribunal authorized to make such determination, or

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called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”

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Heck, 512 U.S. at 486.

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Plaintiff is further advised that the Civil Rights Act provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the
actions of their employees under a theory of respondeat superior and, therefore, when a named
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defendant holds a supervisorial position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862

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(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S.

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941 (1979). Vague and conclusory allegations concerning the involvement of official personnel

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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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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Plaintiff has filed a motion to proceed under a pseudonym. The nature of the

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claims raised in the instant action are not of such an unusual nature that plaintiff should be

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allowed to proceed anonymously. See, e.g. Roe v. Wade, 410 U.S. 113 (1973) (challenge to

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criminal abortion law); United States v. Doe, 655 F.2d 920 (9th Cir. 1980) (use of pseudonym

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allowed because it might prevent dissemination of information within the prison with respect to

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appellant’s cooperation with the Government). Plaintiff’s motion will therefore be denied.

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Plaintiff also requests to correspond by e-mail. Plaintiff does not provide an e-

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mail address and has not set forth circumstances warranting an exception to the local rule which

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provides that persons appearing pro se may not utilize electronic filing. See Local Rule

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133(b)(2).

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

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1. Plaintiff's request to proceed in forma pauperis (dkt. no. 2) is granted;

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2. Plaintiff's complaint is dismissed;
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3. Plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Federal Rules of Civil Procedure,

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and the Local Rules of Practice; the amended complaint must bear the docket number assigned

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this case and must be labeled "Amended Complaint"; plaintiff must file an original and two

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copies of the amended complaint; failure to file an amended complaint in accordance with this

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order will result in a recommendation that this action be dismissed;

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4. Plaintiff’s motion to proceed under pseudonym (dkt. no. 5) is denied; and

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5. Plaintiff’s motion to correspond through e-mail (dkt. no. 6) is denied.

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DATED: June 6, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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JMM

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alston.ifp-lta

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