Duerst v. Placer Court et al
Filing
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ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Allison Claire on 8/18/14. Amended Complaint due within 30 days. The 2 Motion to Proceed IFP is GRANTED. The 3 Motion to Stay and 4 Motion for TRO are DENIED without prejudice. (Manzer, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RYAN J. DUERST,
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No. 2:14-cv-1774 GEB AC PS
Plaintiff,
v.
ORDER
PLACER COURT, ET AL.,
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Defendants.
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Plaintiff, proceeding in this action pro se, has requested authority pursuant to 28 U.S.C. §
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1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 72-
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302(c)(21). Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is
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unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in
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forma 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).
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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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 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 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; and
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4. As it is unclear at this time on what claims and against which defendants plaintiff may
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proceed, his July 28, 2014 motion to stay (ECF No. 3) and August 18, 2014 motion for temporary
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restraining order (ECF No. 4) are denied without prejudice.
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DATED: August 18, 2014
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