Whitaker v. Crane, et al.

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 3/25/13 ORDERING that plaintiff's complaint is DISMISSED with 30 days to file an amended complaint. Clerk of the Court is directed to provide plaintiff with the courts form complaint for a § 1983 action.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH WHITAKER,

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Plaintiff,

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No. 2:13-cv-00505 DAD P

vs.
CRANE, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915.

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This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule

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302 and 28 U.S.C. § 636(b)(1).

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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 an officer or employee of a governmental entity. See 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 be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 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 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. The critical inquiry is whether a constitutional claim, however inartfully

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

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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 Atlantic

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

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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

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

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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

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(1976). The court must also construe the pleading in the light most favorable to the plaintiff and

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

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Here, the allegations in plaintiff’s complaint are so vague and conclusory that the

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court is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The allegations of plaintiff’s hand-written complaint are difficult to decipher. It appears

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that in part plaintiff is attempting to allege that a correctional officer threatened him with

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physical harm. Beyond that, the court cannot determine the nature of plaintiff’s complaint. It is

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clear that plaintiff’s complaint does not contain a short and plain statement as required by Fed. R.

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Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must

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give fair notice to the defendants and must allege facts that support the elements of the claim
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plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which the defendants

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engaged in that support his claims. Id. Because plaintiff has failed to comply with the

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

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however, grant leave to file an amended complaint.

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If plaintiff chooses to file an amended complaint, plaintiff must demonstrate how

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

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

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must allege in specific terms how each named defendant was involved in the deprivation of

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

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

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

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

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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In any amended complaint he elects to file, plaintiff must complete all portions of

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the form complaint, including identifying each named defendant and the correctional facility

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where each defendant is employed. Plaintiff is also advised that an allegation of mere threats

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alone fails to state a claim of cruel and unusual punishment under the Eighth Amendment. Gaut

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v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (Upholding the district court’s dismissal of plaintiff’s

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claim that defendants threatened him with bodily harm to deter plaintiff from pursuing legal

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redress for grievances and observing that “it trivializes the eighth amendment to believe a threat

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constitutes a constitutional wrong.”) Additionally, neither verbal abuse nor the use of profanity

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violate the Eighth Amendment proscription against cruel and unusual punishment. Oltarzewski

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v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (holding that allegations of the use of vulgar

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language; profanity, verbal abuse and verbal harassment do not state a constitutional claim under

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42 U.S.C. § 1983).

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Lastly, plaintiff is informed that the court cannot refer to a prior pleading in order

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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 complaint is dismissed.

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2. 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 Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned to this case and must be labeled “Amended Complaint”; plaintiff must

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use the form complaint provided by the court and answer each question in the form complaint;

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failure to file an amended complaint in accordance with this order will result in the dismissal of

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this action without prejudice.

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3. The Clerk of the Court is directed to provide plaintiff with the court’s form

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complaint for a § 1983 action.

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DATED: March 25, 2013.

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DAD:4
whit505.14

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