Hedrick v. District Attorney Office et al

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 7/17/13 GRANTING 2 Motion to Proceed IFP; DENYING 3 Motion to Appoint Counsel and DISMISSING 1 Plaintiff's Complaint. Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint that complies with the requirements of the FRCP 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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VICTOR HEDRICK,

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No. 2:13-cv-1292 KJM AC PS

Plaintiff,
v.

ORDER

DISTRICT ATTORNEY OFFICE, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this action presumably pursuant to

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42 U.S.C. § 1983, and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma

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pauperis. This proceeding was referred to this court by Local Rule 72-302(c)(21).

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Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable

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to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(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.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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court has determined that the complaint does not contain a short and plain statement as required

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by Federal Rule of Civil Procedure 8(a)(2). Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff

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must allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of

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Federal Rule of Civil Procedure 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 amend the complaint, plaintiff must set forth the jurisdictional

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grounds upon which the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further, plaintiff must

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demonstrate how the conduct complained of has resulted in a deprivation of plaintiff's federal

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rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific

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terms how each named defendant is involved. There can be no liability under § 1983 unless there

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is some affirmative link between a defendant’s actions and the claimed deprivation. Rizzo v.
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Goode, 423 U.S. 362 (9176); 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).

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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 amended complaint complete. Local Rule 15-220 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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Also pending is plaintiff’s motion for appointment of counsel. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court

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does not find the required exceptional circumstances. Plaintiff’s request for the appointment of

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counsel will therefore be denied.

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

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is granted;

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2. Plaintiff’s request for appointment of counsel (ECF No. 3) is denied;

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3. Plaintiff's complaint is dismissed; and

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

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complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the

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

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and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the

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amended complaint; failure to file an amended complaint in accordance with this order will result

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in a recommendation that this action be dismissed.

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DATED: July 17, 2013

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___________________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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/mb;hedr1292.ifp.grant.lta

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