Wilson v. Logan, et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Carolyn K. Delaney on 10/11/11 ; Amended Complaint due within 30 days; 2 Motion to Proceed IFP is GRANTED. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GAVIN WILSON,

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Plaintiff,

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No. CIV S-11-2619 GEB CKD PS

vs.
LOGAN, 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 72-302(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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\\\\

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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.
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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It appears plaintiff is seeking damages arising out of a prosecution of plaintiff

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pursuant to a traffic ticket issued by a California Highway Patrol officer. In Heck v. Humphrey,

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512 U.S. 477 (1994), the United States Supreme Court held that a suit for damages on a civil

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rights claim concerning an allegedly unconstitutional conviction or imprisonment cannot be

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

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

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determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28

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U.S.C. § 2254.” Heck, 512 U.S. at 486.

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Under Heck, the court is required to determine whether a judgment in plaintiff’s

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favor in this case would necessarily invalidate his conviction or sentence. Id. If it would, the

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complaint must be dismissed unless the plaintiff can show that the conviction or sentence has

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been invalidated. This court finds that plaintiff’s action would implicate the validity of any

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conviction under the charges arising from the traffic ticket. In any amended complaint, plaintiff

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must show either that the charges have been dismissed or that his conviction on those charges has

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been invalidated.

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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. Plaintiff’s request to proceed in forma pauperis is granted;

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2. Plaintiff’s complaint is dismissed; and

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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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Dated: October 11, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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wilson.ifp-lta

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