Ardell v. Sacramento Sheriff's Department et al

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/17/2012 ORDERING 2 Motion to Proceed IFP is GRANTED; Plaintiff's 1 Complaint is dismissed with leave to amend; and Plaintiff is granted 30 days from the date of this order to file an amended complaint; Failure to timely file an amended complaint will result in a recommendation that this action be dismissed. (Waggoner, D)

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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 SMITH ARDELL,
Plaintiff,

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No. 2:12-cv-2488 EFB P

vs.
SACRAMENTO SHERIFF’S
DEPARTMENT, et al.,

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Defendants.

ORDER

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Plaintiff proceeds pro se with this civil action. This proceeding was referred to this court
by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff

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has submitted the affidavit required by § 1915(a) showing that he is unable to prepay fees and

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costs or give security therefor. Accordingly, the request to proceed in forma pauperis will be

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granted. 28 U.S.C. § 1915(a). Determining plaintiff may proceed in forma pauperis does not

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complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to

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dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is

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frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

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relief against an immune defendant.
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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if

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it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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

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In reviewing a complaint under this standard, the court must accept as true the allegations

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

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).

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In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation

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of a federal constitutional or statutory right; and (2) that the violation was committed by a person

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acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil

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rights claim unless the facts establish the defendant’s personal involvement in the constitutional

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deprivation or a causal connection between the defendant’s wrongful conduct and the alleged
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constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v.

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Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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Here, plaintiff fails to identify any individual officer who he claims violated his

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constitutional rights. Instead, plaintiff claims that the “Sacramento Sheriff’s Department” and

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unnamed officers violated his rights. “Municipalities and other local government units . . . [are]

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among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

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690 (1978). However, a municipal entity or its departments, is liable under § 1983 only if

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plaintiff shows that his constitutional injury was caused by employees acting pursuant to the

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municipality’s policy or custom. See Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964

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(9th Cir. 2008) (citing 436 U.S. at 690-94).
Plaintiff’s allegations are too vague and conclusory to state a cognizable claim for relief.

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

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and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency,

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733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because

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plaintiff fails to state a claim for relief, the complaint must be dismissed.

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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended

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complaint must cure the deficiencies identified above and also adhere to the following

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requirements:

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Any amended complaint must identify as a defendant only persons who personally
participated in a substantial way in depriving him of a federal constitutional right. Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See Local Rule 110.

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Accordingly, IT IS ORDERED that:

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

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2. Plaintiff’s complaint is dismissed with leave to amend; and,

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

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complaint. The amended complaint must bear the docket number assigned to this case and must

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be labeled “Amended Complaint.” Failure to timely file an amended complaint in accordance

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with this order will result in a recommendation that this action be dismissed.

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Dated: October 17, 2012.

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