Smith v. Sacramento Sheriff Department, Elk Grove Branch Jail

Filing 4

ORDER granting 2 Motion to Proceed IFP signed by Magistrate Judge Dale A. Drozd on 12/23/11: The complaint filed November 21, 2011 1 is dismissed with leave to amend. Plaintiff is granted thirty days from the date of this order in which to file an amended complaint. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH A. SMITH,

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Plaintiff,

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No. 2:11-cv-3093 DAD (PC)

v.
SACRAMENTO SHERIFF
DEPARTMENT, et al.,

ORDER

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Defendants.
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Plaintiff is a former county jail inmate proceeding pro se with a civil rights action

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pursuant to 42 U.S.C. § 1983. This matter was referred to the undersigned in accordance with

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Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has requested leave to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff has submitted an in forma pauperis application that makes the showing

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required by 28 U.S.C. § 1915(a)(1). Plaintiff’s request for leave to proceed in forma pauperis

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will therefore be granted.

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The determination that plaintiff may proceed in forma pauperis does not complete

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the inquiry required by the statutes. Under 28 U.S.C. § 1915(e)(2), the court is required to

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dismiss an in forma pauperis case at any time if the plaintiff’s allegations of poverty is untrue or

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if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or
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seeks monetary relief against an immune defendant. To state a claim on which relief may be

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granted, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is frivolous when it lacks

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an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co.

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v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as

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true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:

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A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks.

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Fed. R. Civ. P. 8(a).
The court find the allegations in plaintiff’s complaint too vague and conclusory to

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state a claim upon which relief can be granted. Although the Federal Rules of Civil Procedure

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adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s

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claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R.

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Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A

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pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of

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action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of

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‘further factual enhancements.’” Ashcroft v. Iqbal, --- U.S.---, ---, 129 S. Ct. 1937, 1949 (2009)
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(quoting Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of

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particularity overt acts which the defendants engaged in that support the plaintiff’s claims.

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Jones, 733 F.2d at 649. A complaint must also contain “a short and plain statement of the

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grounds for the court’s jurisdiction” and “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(1)

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& 8(a)(3).

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Here, in his complaint plaintiff alleges that he was held in a holding tank in the

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R&R unit of the Rio Cosumnes Unit of the Sacramento County for eight and a half hours past the

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time that he was to be released on parole, apparently because he is homeless and sheriff’s

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deputies did not want him sleeping in front of the Union Gospel Mission Center. Plaintiff claims

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that jail officials allowed other black inmates parole ahead of him. He claims racial

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discrimination and harassment. However, plaintiff does not identify any individual allegedly

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involved in this incident nor does he allege when this incident occurred. Moreover, plaintiff’s

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complaint does not contain a short and plain statement of the grounds upon which the court’s

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jurisdiction depends, a short and plain statement of the claim showing that the plaintiff is entitled

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to relief, or a demand for judgment for the relief plaintiff seeks. In this regard, plaintiff’s

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complaint fails to satisfy the minimum requirements for a civil complaint in federal court and

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does not state a cognizable claim. Accordingly, plaintiff’s complaint will be dismissed with

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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 name specific

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defendants and must allege in specific terms how each named defendant is involved. There can

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

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between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362

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(1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in
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civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.

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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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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s November 21, 2011 application to proceed in forma pauperis (Doc.

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No. 2) is granted.

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2. The complaint filed November 21, 2011 (Doc. No. 1) is dismissed with leave to
amend.

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3. Plaintiff is granted thirty days from the date of this order in which to file an

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amended complaint shall be filed that cures the defects noted in this order and complies with the

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Federal Rules of Civil Procedure and the Local Rules of Practice. The amended complaint must

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bear the case number assigned to this action and must be titled “Amended Complaint.”

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4. Failure to respond to this order in a timely manner may result in a

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recommendation that this action be dismissed.

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DATED: December 23, 2011.

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DAD:12
smith3093.ifp.ord

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