Bowen v. Cate et al

Filing 17

ORDER signed by Magistrate Judge Allison Claire on 3/18/2013 ORDERING that plaintiff's 1014/2012 amended complaint is DISMISSED; Gregory P Wayland is APPOINTED for the limited purpose of drafting and filing a second amended complaint; the seco nd amended complaint shall be filed within 60 days; Gregory P. Wayland's appointment will terminate when plaintiff's second amended complaint is filed; and the Clerk shall serve a copy of this order upon Gregory P. Wayland. (cc: ADR)(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BURCH MICHAEL BOWEN,
Plaintiff,

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No. 2:12-cv-1519 MCE AC P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner seeking relief pursuant to 42 U.S.C. § 1983. On

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August 13, 2012, plaintiff’s complaint was dismissed with leave to amend. Plaintiff was then

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granted appointment of counsel for the limited purpose of filing an amended complaint. On

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October 14, 2012, plaintiff, through appointed counsel, filed a first amended complaint (“FAC”)

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against defendants Cate, Milliner, Carrick, Swarthout, McAlpine, Shadday, Hartley, McElroy,

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Chapnick, Boparai, Conanan, and Kamen. The FAC is now before the court.

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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 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
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be 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).

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A claim is legally frivolous when it lacks an arguable basis either in law or in

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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-

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28 (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.

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Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however

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inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d

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639, 640 (9th 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

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Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a

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

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must contain factual allegations sufficient “to raise a right to relief above the speculative level.”

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Bell Atlantic, id. However, “[s]pecific facts are not necessary; the statement [of facts] need only

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‘“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’”

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Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964,

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in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this

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standard, the court must accept as true the allegations of the complaint in question, Erickson, id.,

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and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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The court finds the allegations in plaintiff’s FAC so conclusory that it is unable to

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determine whether the current action is frivolous or fails to state a claim for relief. While the

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court finds service appropriate for defendant Shadday, there are simply no factual allegations as
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to any of the other eleven defendants. The court has thus determined that the complaint does not

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contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal

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Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements

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of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th

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Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which

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defendants engaged in that support plaintiff’s claim. Id. Because plaintiff has failed to comply

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with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court

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will, however, grant leave to file a second amended complaint.
If plaintiff chooses to file a second amended complaint, plaintiff must

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demonstrate how the conditions complained of have resulted in a deprivation of plaintiff’s

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constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second

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amended complaint must allege in specific terms how each named defendant is involved.

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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 U.S.

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

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740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation

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in 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 second amended complaint complete. Local Rule 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 a second amended complaint, the

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original pleading no longer serves any function in the case. Therefore, in a second amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must

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be sufficiently alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s October 14, 2012 amended complaint is dismissed;

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2. Gregory P. Wayland is appointed as limited purpose counsel in the above

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entitled matter. This appointment is for the limited purpose of drafting and filing a second

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amended complaint;

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3. The second amended complaint shall be filed within 60 days;

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4. Gregory P. Wayland’s appointment will terminate when plaintiff’s second

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amended complaint is filed;

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5. Gregory P. Wayland shall notify Sujean Park, at [phone], or via email
at [e-mail], if he has any questions related to the appointment; and

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6. The Clerk of the Court is directed to serve a copy of this order upon Gregory

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P. Wayland, Law Office of Gregory P. Wayland, 1010 Sagamore Way, Sacramento, California

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95822.

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DATED: March 18, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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