Armstead v. Sapunor et al

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/02/14 granting 4 Motion to Proceed IFP. Plaintiff's complaint is dismissed. Plaintiff is granted 30 days from the date of this order to file an amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW JACKSON ARMSTEAD, JR.,

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No. 2:13-cv-2152 CKD P

Plaintiff,
v.

ORDER

JOHN SAPUNOR, et al.,
Defendants.

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Plaintiff is a recently paroled California prisoner proceeding pro se. He seeks relief

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pursuant to 42 U.S.C. § 1983 and has consented to have all matters in this action before a United

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States Magistrate Judge. See 28 U.S.C. 636(c). This proceeding was initially referred to this

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court pursuant to Local Rule 302 and 28 U.S.C. § 636(b)(1).

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Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Since plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a), the request to proceed in forma pauperis will be granted.

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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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It appears that the claims in plaintiff’s complaint arise out of criminal proceedings which

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resulted in plaintiff being convicted of various criminal offenses. Any § 1983 claim which

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implies the invalidity of a criminal conviction is barred by Heck v. Humphrey, 512 U.S. 477

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(1994). Before plaintiff could proceed with such a claim, he would have to show that the

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conviction at issue has been reversed, which plaintiff has not done. Id. at 486-87.

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In light of the foregoing, plaintiff’s complaint will be dismissed. Plaintiff will be given

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one opportunity to cure the deficiencies with his claims. If a claim in plaintiff’s amended

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complaint implies the invalidity of any criminal conviction, plaintiff must show that the

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conviction at issue has been invalidated or the claim will be dismissed. Heck, 512 U.S. at 486-87.
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More generally, if plaintiff chooses to amend his complaint, plaintiff must demonstrate

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how the conditions complained of have resulted in a deprivation of plaintiff’s constitutional

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

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specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 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 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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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 (ECF No. 4) is granted.

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2. Plaintiff’s complaint is dismissed.

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3. 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 this order, 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 this case and must be labeled “Amended Complaint”; failure to file an

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amended complaint in accordance with this order will result in dismissal of this action.

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Dated: January 2, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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1/arms2152.14

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