Biagas v. Virga et al

Filing 28

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 11/02/15 ordering plaintiff shall show cause in writing within 30 days of the date of this order, why this action should not be dismissed for failure to state a claim. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT J. BIAGAS, SR.,

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No. 2:13-cv-2656-CMK-P

Plaintiff,

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vs.

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T. VIRGA, et al.,

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ORDER

Defendants.
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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint, and several

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motions plaintiff has filed for production and inspection of documents (Docs. 21, 26, 27), and

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temporary restraining order (Doc. 20). Plaintiff’s amended complaint is addressed herein.

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Plaintiff’s other motions will be addressed by separate order if his amended complaint survives

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screening. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

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636(c) and no other party has been served or appeared in the action.

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As the court previously explained, the court is required to screen complaints

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brought by prisoners seeking relief against a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion
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thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be

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granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that

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complaints contain a “short and plain statement of the claim showing that the pleader is entitled

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to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and

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directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P.

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8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the

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plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129

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(9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts

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by specific defendants which support the claims, vague and conclusory allegations fail to satisfy

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this standard. Additionally, it is impossible for the court to conduct the screening required by

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law when the allegations are vague and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff’s claims remain unclear in his amended complaint. It does not appear

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that he has limited the number of defendants to those related by the same claims, as he continues

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to name various correctional officers, supervisors, and wardens as defendants to this action. As

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with his original complaint, the amended complaint still fails to allege any specific facts, but

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appears to allege various violations ranging from Due Process, medical treatment, obstruction of

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justice, to failure to protect and inappropriate behavior by the correctional staff.

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II. DISCUSSION

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Plaintiff’s amended complaint suffers from the same defects as his original

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complaint. Specifically, plaintiff fails to satisfy the requirements of Rule 8 of the Federal Rules

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of Civil Procedure to state his claim simply, concisely, and directly. He continues to offer vague

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allegations without alleging any factual support for claims. Plaintiff does not plead with

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sufficient clarity any of his possible claims.

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

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that it fails to state a claim upon which relief can be granted. Although the Federal Rules of Civil

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Procedure adopt a flexible pleading policy, a complaint must give fair notice and state the

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elements of the claim plainly and succinctly. See Jones v. Community Redev. Agency, 733 F.2d

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646, 649 (9th Cir. 1984). Plaintiff was provided specific direction on what was required to state

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a claim as to each of the possible claims the court could decipher from his original complaint.

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However, he has failed to follow the court’s direction and cure the defects in his complaint by

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either limiting the claims to those related, or by alleging sufficient factual allegations as to each

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named defendant. It therefore appears that plaintiff is either unable or unwilling to allege

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sufficient facts to state a claim, and further leave to amend is unlikely to help.

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III. CONCLUSION

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Because it does not appear possible that plaintiff can cure the deficiencies

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identified by the court by amending the complaint, plaintiff is not entitled to further leave to

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amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131

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(9th Cir. 2000) (en banc). Plaintiff shall show cause in writing, within 30 days of the date of this

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order, why this action should not be dismissed for failure to state a claim. Plaintiff is warned that

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failure to respond to this order may result in dismissal of the action for the reasons outlined

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above, as well as for failure to prosecute and comply with court rules and orders. See Local Rule

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110.

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IT IS SO ORDERED.

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DATED: November 2, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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