Turner v. Artis et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/12/13 DISMISSING 9 Second Amended Complaint. Plaintiff is GRANTED 30 days from the date of service of this order to file a third amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. (Meuleman, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JASON TURNER,
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No. 2:13-cv-0944 CKD P
Plaintiff,
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v.
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D. ARTIS, et al.,
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ORDER
Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed
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pursuant to 42 U.S.C. § 1983. By order filed June 13, 2013, plaintiff’s amended complaint was
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dismissed with leave to file a second amended complaint. Plaintiff has now filed a second
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amended complaint.
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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 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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In order to avoid dismissal for failure to state a claim a complaint must contain more than
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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim
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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.
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at 1949. When considering whether a complaint states a claim upon which relief can be granted,
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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),
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and construe the complaint in the light most favorable to the plaintiff, see 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 second amended complaint so vague and
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conclusory that it fails to state a claim upon which relief can be granted. Although the Federal
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Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give fair notice and
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state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733
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F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity
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overt acts which defendants engaged in that support plaintiff’s claim. Id. Plaintiff’s second
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amended complaint must be dismissed. The court will, however, grant leave one final
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opportunity to amend.
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If plaintiff chooses to file a third amended complaint, plaintiff must demonstrate how the
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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff complains about denial of access to
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prison activities such as access to the outside exercise yard. However, he fails to allege facts
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indicating denial of such access amounts to cruel and unusual punishment under the Eighth
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Amendment or a violation of any other federal law.
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Also, the third amended complaint must allege in specific terms how each named
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defendant is involved. 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). Furthermore, vague and conclusory allegations of
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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673
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F.2d 266, 268 (9th Cir. 1982).
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
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make plaintiff’s third 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 a third amended complaint, the original pleading
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no longer serves any function in the case. Therefore, in a third amended complaint, as in an
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original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s second amended complaint is dismissed; and
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2. Plaintiff is granted thirty days from the date of service of this order to file a third
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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules
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of Civil Procedure, and the Local Rules of Practice; the third amended complaint must bear the
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docket number assigned this case and must be labeled “Third Amended Complaint”; plaintiff
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must file an original and two copies of the third amended complaint; failure to file a third
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amended complaint in accordance with this order will result in a recommendation that this action
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be dismissed.
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Dated: August 12, 2013
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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