Craver v. Brewer et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K Delaney on 8/5/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The complaint is DISMISSED with 30 days to file an amended complaint. (Dillon, 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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ADAM REIDE CRAVER,
Plaintiff,

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No. 11-cv-1570-CKD P

vs.
TRACI A. BREWER, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

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U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma

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pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28

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U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff is currently without funds. Accordingly, the court will

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not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make

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monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s

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prison trust account. These payments shall be collected and forwarded by the appropriate agency
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to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the

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filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
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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Here, plaintiff’s statement of claim is brief and uninformative. Plaintiff alleges

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that defendant Brewer, a social worker,“in her protective custody order wrote that [I] was a

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registered sexual offender (290) in her report and submitted it to the prosecution in my case!”

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(Doc. No. 1. at 3.) Petitioner does not attempt to explain why this report was erroneous, let alone

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why its submission violated a federal constitutional right. Petitioner does not allege that named

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defendant Lang, a detective, committed any particular wrongdoing, but merely suggests that Lang

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was involved in the “inquiry” that led to Brewer’s report. (Id.)

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

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Complaints are required to set a forth (1) the grounds upon which the court’s jurisdiction rests,

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(2) a short and plain statement of the claim showing entitlement to relief; and (3) a demand for

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the relief plaintiff seeks. All that is required are sufficient allegations to put defendants fairly on

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notice of the claims against them. See Conley v. Gibson, 355 U.S. 41, 47 (1957)(abrogated on

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another ground by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); 5 C. Wright & A.

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Miller, Federal Practice and Procedure § 1202 (2d ed. 1990). Rule 8 requires “sufficient

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allegations to put defendants fairly on notice of the claims against them.” McKeever v. Block,

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932 F.2d 795, 798 (9th Cir. 1991)). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640,

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645 (7th Cir. 1995) (amended complaint with vague and scanty allegations fails to satisfy the

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notice requirement of Rule 8.) Plaintiff’s bare and cursory allegations do not set forth the

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grounds for this court’s jurisdiction. Nor do they suffice to put defendants on notice of the

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claims against them. Thus, the complaint will be dismissed with leave to amend.

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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.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis (Doc. No. 2) is

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granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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The fee shall be collected and paid in accordance with this court’s order to the Director of the

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California Department of Corrections and Rehabilitation filed concurrently herewith.

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3. The complaint is dismissed for the reasons discussed above, with leave to file

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

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

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DATED: August 5, 2011

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/s/ Carolyn K. Delaney
___________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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