Parks v. Butte County Jail et al

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 7/29/11 ORDERING that Plaintiff shall submit, within 30 days from the date of this order, either the $350.00 filing fee or a properly completed application to proceed in forma pauperis; Plaintiff s 1 complaint, is DISMISSED with 30 days to file an amended complaint; Clerk of the Court is directed to send plaintiff an Application to Proceed In Forma Pauperis By a Prisoner and the form complaint for use in a §1983 civil rights action.(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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JASON L. PARKS,

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Plaintiff,
vs.
BUTTE COUNTY JAIL, et al.,
Defendants.

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No. CIV S-11-1713 DAD P

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff has not paid the required filing fee of $350.00 or filed an

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application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) & 1915(a). In addition, for

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th reasons set forth below, in screening plaintiff’s complaint the court finds that it is defective.

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I. Filing Fee or In Forma Pauperis Application

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Plaintiff will be granted thirty days to pay the filing fee in full or submit a properly
completed application to proceed in forma pauperis.
Plaintiff is cautioned that the in forma pauperis application form includes a

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section that must be completed by a prison official, and the form must be accompanied by a

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certified copy of plaintiff’s prison trust account statement for the six-month period immediately

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preceding the filing of this action.
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II. Screening Requirement

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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 an officer or employee of a governmental entity. See 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. See 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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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976). The court must also construe the pleading in the light most favorable to the plaintiff and

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

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Here, the allegations in plaintiff’s complaint are so vague and conclusory that the

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

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relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice to the defendants and must allege facts that support 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 his claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R.

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

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to file an amended complaint.

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III. Amended Complaint
In his amended complaint, plaintiff must allege facts demonstrating how the

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conditions complained of resulted in a deprivation of his federal constitutional or statutory rights.

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See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in

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specific terms how each named defendant was involved in the deprivation of plaintiff’s rights.

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423

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U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil

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rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff is informed that the court cannot refer to a prior pleading in order to

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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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A. Naming Proper Defendants

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The Civil Rights Act under which this action was filed 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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In the caption of his original complaint, plaintiff has named the Butte County Jail

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as a defendant in this action. The Jail is not a person and is not a proper defendant for a civil

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rights action. Therefore, in the amended complaint, plaintiff should not include Butte County

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Jail as a defendant.

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Plaintiff has also named the “Butte Co. Sheriff/jail officers” as a defendant.

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Plaintiff is advised that supervisory personnel are generally not liable under § 1983 for the

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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). Vague and conclusory

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allegations concerning the involvement of official personnel 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). Plaintiff has not

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included any allegations suggesting the involvement of the Butte County Sheriff in the alleged

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violation of plaintiff’s constitutional rights. Therefore, in any amended complaint he elects to
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file, if plaintiff seeks to proceed against defendant Butte County Sheriff, plaintiff must include

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additional factual allegations addressing this deficiency.

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As to named defendants identified by plaintiff only as “jail officers,” plaintiff is

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advised that he must identify the specific persons who were involved in the alleged violation of

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his civil rights by name in order to proceed against them as defendants. Moreover, the U.S.

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Marshal would be unable to serve process on such defendants unless they are identified by name.

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B. Plaintiff Status
Plaintiff is advised that the applicable constitutional provision that prohibits the
use of excessive force depends on the prisoner’s status at the time that the alleged excessive force

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was used. In any amended complaint he may elect to file, plaintiff must clarify whether at the

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time force was used allegedly used against him, he was being detained for arraignment, whether

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he had already been arraigned and was awaiting trial or trial was in progress, or whether he had

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been convicted of criminal charges and was awaiting transfer to state prison.

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CONCLUSION

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

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1. Plaintiff shall submit, within thirty days from the date of this order, either the

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$350.00 filing fee or a properly completed application to proceed in forma pauperis on the form

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provided with this order;

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2. Plaintiff’s complaint, filed June 24, 2011, is dismissed;

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3. Within thirty days from the date of this order, plaintiff shall file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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

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assigned to this case and must be labeled “Amended Complaint”; plaintiff shall use the form

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complaint provided by the Clerk of the Court and answer each question in the form complaint;

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4. The Clerk of the Court is directed to send plaintiff an Application to Proceed

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In Forma Pauperis By a Prisoner and the form complaint for use in a §1983 civil rights action;
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5. Plaintiff’s failure to comply with this order will result in a recommendation

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that this action be dismissed without prejudice.

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DATED: July 29, 2011.

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DAD: 4
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