Garcia v. Foulk

Filing 19

ORDER signed by Magistrate Judge Craig M. Kellison on 5/21/15 ORDERING that 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.(Dillon, 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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JOSE LUIS GARCIA,

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Plaintiff,
vs.

ORDER

FRED FOULK,

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Defendant.

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/

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No. 2:14-CV-0865-CMK-P

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s second amended complaint (Doc. 16).1

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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Plaintiff’s original complaint was dismissed with leave to amend. Plaintiff filed
his first amended complaint on October 31, 2014. On November 20, 2014, plaintiff filed a
second amended complaint as of right. See Federal Rule of Civil Procedure 15(a)(1). This
action, therefore, proceeds on the second amended complaint which superceded the first
amended complaint.
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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As with plaintiff’s original complaint, Fred Foulk is the only named defendant.

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Plaintiff, however, fails to include any factual allegations as to this individual. It thus appears

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that, despite the court’s prior guidance on the issue, plaintiff is either unable or unwilling to

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allege facts sufficient to state a claim against Foulk.

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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action

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should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to

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this order may result in dismissal of the action for the reasons outlined above, as well as for

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failure to prosecute and comply with court rules and orders. See Local Rule 110.

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IT IS SO ORDERED.

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DATED: May 21, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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