Whitaker v. Crane, et al.

Filing 35

ORDER signed by Magistrate Judge Dale A. Drozd on 9/23/2015 GRANTING plaintiff's 30 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's 34 motion to file an amended complaint is GRANTED. Plaintiff has 30 days to file a fourth amended complaint. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOSEPH WHITAKER,

12
13
14

No. 2:13-cv-00505 KJM DAD P

Plaintiff,
v.

ORDER

CRANE, et al.,

15

Defendants.

16
17

Plaintiff is a state prisoner proceeding pro se with an action filed pursuant to 42 U.S.C.

18

§ 1983. Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

19

§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

20

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

21

§§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

22

accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

23

the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

24

forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

25

of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

26

These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

27

the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

28

§ 1915(b)(2).
1

1

On September 8, 2015, plaintiff filed a motion for leave to file a fourth amended

2

complaint in this action. (ECF No. 34.) The court notes that plaintiff’s Third Amended

3

Complaint, filed December 17, 2014, cured none of the deficiencies identified in plaintiff’s

4

previous three complaints. Each of the complaints filed in this action by plaintiff “fails to

5

articulate an actionable claim for relief against any defendant.” (Order, August 24, 2014 (ECF

6

No. 23) at 3.)

7

Plaintiff’s motion for leave to amend will be granted. However, this will be plaintiff’s

8

final opportunity to file a complaint stating a cognizable claim in this action. Plaintiff is

9

cautioned that the court is required to screen complaints brought by prisoners seeking relief

10

against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C.

11

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

12

claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

13

granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

14

U.S.C. § 1915A(b)(1) & (2).

15

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

16

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

17

Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

18

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

19

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

20

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

21

Cir. 1989); Franklin, 745 F.2d at 1227.

22

Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

23

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

24

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

25

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

26

However, in order to survive dismissal for failure to state a claim a complaint must contain more

27

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

28

allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555. In
2

1

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

2

complaint. See Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court

3

must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts

4

in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

5

In any fourth amended complaint, plaintiff must allege facts demonstrating how the

6

conditions complained of resulted in a deprivation of plaintiff’s federal constitutional or statutory

7

rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Any fourth amended complaint

8

plaintiff elects to file must allege in specific terms how each named defendant was involved in the

9

deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

10

some affirmative link or connection between a defendant’s actions and the claimed deprivation.

11

Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

12

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of

13

official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d

14

266, 268 (9th Cir. 1982).

15

Plaintiff is reminded that the court cannot refer to prior pleadings in order to make his

16

fourth amended complaint complete. Local Rule 220 requires that an amended complaint be

17

complete in itself without reference to any prior pleading. This is because, as a general rule, an

18

amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

19

Cir. 1967). Once plaintiff files a fourth amended complaint, the prior pleading no longer serves

20

any function in the case. Therefore, in a fourth amended complaint, as in an original complaint,

21

each claim and the involvement of each defendant must be sufficiently alleged.

22

In accordance with the above, IT IS HEREBY ORDERED that:

23

1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 30) is granted.

24

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

25

is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

26

§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

27

Director of the California Department of Corrections and Rehabilitation filed concurrently

28

herewith.
3

1

3. Plaintiff’s motion to file an amended complaint (ECF No. 34) is granted. Plaintiff is

2

granted thirty days from the date of service of this order to file a fourth amended complaint that

3

complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and

4

the Local Rules of Practice; the fourth amended complaint must bear the docket number assigned

5

to this case and must be labeled “Fourth Amended Complaint”; failure to file a fourth amended

6

complaint in accordance with this order will result in a recommendation that this action be

7

dismissed without prejudice.

8

Dated: September 23, 2015

9
10
11
12

DAD:10
whit0505.lta

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4