Ward v. Solano County Sheriff's Dept et al

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/18/2013 GRANTING plaintiff's 2 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent notice to the Solano County Sheriff; and the complaint is DISREGARDED, plaintiff may file a new complaint within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ERIC WARD,

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Plaintiff,

No. 2:13-cv-1312-EFB P

vs.
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SOLANO COUNTY SHERIFF’S
DEPT., et al.,
Defendants.
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ORDER

Plaintiff is a county inmate proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma

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pauperis. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).
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The court cannot conduct the required screening of plaintiff’s complaint because plaintiff

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has not signed it. See ECF No. 1. Rule 11 of the Federal Rules of Civil Procedure requires that

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“[e]very pleading, written motion, and other paper . . . be signed by at least one attorney of

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record in the attorney’s name—or by a party personally if the party is unrepresented.” Fed. R.

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Civ. P. 11(a). Because plaintiff did not sign the complaint, it will be disregarded. Within thirty

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days, plaintiff shall file a signed complaint. That complaint must identify each defendant in

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both the caption and the body, and clearly set forth the allegations against each such defendant.

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Pursuant to Rule 8 of the Federal Rules of Civil Procedure, any complaint must include “a short

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and plain statement of the claim” showing entitlement to relief. Fed. R. Civ. P. 8(a)(2).

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Plaintiff is also hereby informed that it is his responsibility to allege facts to state a

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plausible claim for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Moss v. U.S. Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009). In order to state a claim under 42 U.S.C. § 1983, a

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plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that

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the violation was committed by a person acting under the color of state law. See West v. Atkins,

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487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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A complaint must show that the federal court has jurisdiction and that plaintiff’s action is

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brought in the right place, that plaintiff is entitled to relief if plaintiff’s allegations are true, and

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must contain a request for particular relief. Plaintiff must identify as a defendant only persons

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who personally participated in a substantial way in depriving plaintiff of a federal constitutional

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right. Johnson, 588 F.2d at 743-44 (9th Cir. 1978) (a person subjects another to the deprivation

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of a constitutional right if he does an act, participates in another’s act or omits to perform an act

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he is legally required to do that causes the alleged deprivation). That is, plaintiff may not sue any

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official on the theory that the official is liable for the unconstitutional conduct of his or her

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subordinates. Iqbal, 129 S. Ct. at 1948. Because respondeat superior liability is inapplicable to

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§ 1983 suits, “a plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Id.
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Accordingly, the court hereby orders that:

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1. Plaintiff’s request to proceed in forma pauperis is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the Solano County Sheriff filed concurrently herewith.
3. The complaint (ECF No. 1) is disregarded. Plaintiff may file a new complaint within

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30 days. Failure to comply with this order will result in a recommendation of dismissal. If

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plaintiff files a complaint stating a cognizable claim, the court will proceed with service of

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process by the United States Marshal.

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Dated: July 18, 2013.

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