Jackson v. Traquina et al

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 6/3/2014 GRANTING plaintiff's 6 request to proceed IFP; DISMISSING plaintiff's complaint; and within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER JACKSON,

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No. 2:13-cv-0781 KJN P

Plaintiff,
v.

ORDER

DR. ALVARO TRAQUINA, et al.,
Defendants.

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Plaintiff is a former state prisoner proceeding without counsel. Plaintiff seeks relief

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pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to

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28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See

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28 U.S.C. § 636(c).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.
§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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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 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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First, plaintiff failed to sign the civil rights complaint. Rule 11(a) of the Federal Rules of

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Civil Procedure requires that all litigants proceeding without counsel must sign every pleading.

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Id. Although plaintiff typed his name on the signature line, plaintiff’s typewritten name is not

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sufficient under Rule 11. Thus, plaintiff’s complaint must be dismissed with leave to allow

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plaintiff to submit a signed amended complaint.

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Second, rather than complete the complaint form used by this district, plaintiff refers the

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reader to “see attached complaint.” (ECF No. 1 at 2, 3.) Plaintiff appended a five page

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typewritten complaint which is also not signed by plaintiff (ECF No. 1 at 38), and is addressed to

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the Solano County Superior Court and the Honorable Judge Harry S. Kinnicutt, a Solano County

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Superior Court Judge (ECF No. 1 at 35.) The typewritten complaint also bears a Superior Court

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Case Number FCS 039590. (Id.) Plaintiff is advised that he cannot pursue the same claims in

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two different courts at the same time. Plaintiff does state in this typewritten complaint that he is

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filing the instant civil rights action in federal court (ECF No. 1 at 35), but the heading does not

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make clear that he is not pursuing the same claims in both venues at the same time. Thus, in any

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amended complaint, plaintiff must make clear that he is solely pursuing his claims in federal court

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and not in Solano County Superior Court action FCS 039590.

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Third, plaintiff may state a potentially cognizable civil rights claim based on his

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allegations that defendants’ deliberate indifference to his serious medical needs. If plaintiff is not

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concurrently pursuing these claims in state court, plaintiff may re-append the typewritten

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complaint to the completed civil rights form used by our district if he deletes the reference to the

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Superior Court of Solano County, the state court judge and case number, and provides a valid

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signature to both the federal civil rights form and the typewritten complaint. Plaintiff need not re-

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append the 31 exhibits as these exhibits remain a part of the court record and may be referenced

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by any party.

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Because plaintiff failed to sign either complaint, the complaint must be dismissed with

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leave to amend. Fed. R. Civ. P. 11(a). If plaintiff chooses to amend the complaint, plaintiff must

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personally sign the complaint form. In addition, plaintiff is informed that the court cannot refer to

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a prior pleading in order to make plaintiff’s amended complaint complete. Local Rule 220

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requires that an amended complaint be complete in itself without reference to any prior pleading.

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This requirement exists because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended
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complaint, the original pleading no longer serves any function in the case. Therefore, in an

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

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defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY 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; and

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3. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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Dated: June 3, 2014

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/jack0781.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER JACKSON,

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No. 2:13-cv-0781 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

DR. ALVARO TRAQUINO, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
_____________

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Amended Complaint

DATED:
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Plaintiff