Ceaser v. Hope Organization, et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/11/11 4 Findings and recommendations are vacated; 5 Motion to Proceed IFP is granted; Plaintiff's complaint is dismissed; and plaintiff is granted 30 from the date of service of this order to file an amended complaint. (Matson, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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OSCAR CEASER,
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Plaintiff,
vs.
CIV S-11-2231 LKK CKD PS
HOPE ORGANIZATION, et al.,
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Defendants.
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ORDER
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Plaintiff has not paid the fee ordinarily required to file an action in this court, and
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failed to timely submit a completed application to proceed without prepayment of fees. The
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court accordingly recommended the action be dismissed. Plaintiff has now filed a completed
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application. The recommendation of dismissal will therefore be vacated.
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The affidavit submitted by plaintiff shows he is unable to prepay fees and costs or
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give security for them. Accordingly, the request to proceed in forma pauperis will be granted. 28
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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.
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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.
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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
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Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to
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file an amended complaint.
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Plaintiff does not set forth the jurisdictional ground for this action. It appears
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plaintiff may be trying to allege a claim for excessive force under the Civil Rights Act. That
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statute 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
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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), 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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It appears from the exhibits attached to the complaint that plaintiff is complaining
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about handcuffs that were applied too tightly. Plaintiff is advised that excessive force claims in
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the context of pretrial detainees are measured by whether the arresting officer’s actions were
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objectively unreasonable in light of the circumstances. See Lolli v. County of Orange, 351 F.3d
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410, 415 (9th Cir. 2003) (explaining that for a pretrial detainee’s excessive force claims, the
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question is whether the defendant’s actions are “objectively reasonable” in light of the facts and
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circumstances, without regard to underlying intent or motivation); see also Gibson v. County of
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Washoe, Nev., 290 F.3d 1175, 1197-98 (9th Cir. 2002) (explaining that the “nature and quality of
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the intrusion” on a pretrial detainee’s rights is considered when evaluating an excessive force
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claim).
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Plaintiff names as a defendant the City of Woodland Police Department. No
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allegations, however, are made that any official policy gave rise to the alleged constitutional
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deprivation. See Monell v. Department of Social Servs., 436 U.S. 658 (1978). As such, a claim
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against the police department cannot lie. In addition, there are no charging allegations against
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defendants Hope Organization, Angie Barrera or Jeff Rulon.
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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 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 15-220 requires that an
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amended complaint be complete in itself without reference to any prior pleading. This is
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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original
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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an
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original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. The findings and recommendation (dkt. no. 4) are vacated;
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2. Plaintiff’s request to proceed in forma pauperis is granted;
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3. Plaintiff’s complaint is dismissed; and
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4. 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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Dated: October 11, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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ceaser.ifp-lta
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