Hoffmann v. Corning Police Department, et al.

Filing 5

ORDER signed by Magistrate Judge Dale A. Drozd on 12/10/2014 GRANTING plaintiff's 2 motion to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order to the Sheriff of San Bernardino County; plaintiff's complaint is DISMISSED; and plaintiff has 30 days to file an amended complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBIN HOFFMANN,

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Plaintiff,

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No. 2:14-cv-2793 DAD P

v.

ORDER

CORNING POLICE DEPARTMENT

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Defendant.

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Plaintiff is a state prisoner proceeding pro se. She seeks relief pursuant to 42 U.S.C. §

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1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
The court is required to screen complaints brought by prisoners who seek 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 considering whether a complaint states a claim upon which relief can be granted, the
court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe

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the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232,

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236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a

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claim, a pro se complaint must contain more than “naked assertions,” “labels and conclusions” or

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“a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). Furthermore, a claim upon which the court can grant relief must have facial

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plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678. Attachments to a complaint are considered

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part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach

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Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).

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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). A plaintiff

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must allege with at least some degree of particularity overt acts in which defendants engaged that

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support plaintiff's claim. Id. Therefore the complaint must allege in specific terms how each

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named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between an individual defendant’s actions and the claimed
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deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 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 this case, the complaint before the court does not contain a single allegation that could

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apprise either the court or the defendant of the nature of the claims plaintiff alleges under the

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Civil Rights Act or of the factual bases for bringing those claims. Indeed, the complaint is almost

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wholly blank, and nothing indicates what acts the defendant allegedly committed that, if proved,

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would entitle the plaintiff to relief under 42 U.S.C. § 1983. Plaintiff’s statement of her claim

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reads in its entirety “12-12-13 Super 8 motel, Corning California.” (Doc. No. 1 at 3.) Because of

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these pleading deficiencies, plaintiff’s complaint will be dismissed. However, the court will grant

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the plaintiff the opportunity to file an amended complaint that states a claim under § 1983.

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If plaintiff chooses to amend her complaint, the court will examine the amended

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complaint according to the screening standards described above. Plaintiff is informed that the

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court cannot refer to a prior pleading in order to make plaintiff’s amended complaint complete.

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Local Rule 220 requires that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended

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complaint, the prior pleading no longer serves any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to proceed in forma pauperis (Doc. No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee

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shall be collected and paid in accordance with this court’s order to the Sheriff of San Bernardino

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County filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.
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4. 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 Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

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number assigned this case and must be labeled “Amended Complaint.” Plaintiff must file an

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original and two copies of the amended complaint. Failure to file an amended complaint in

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accordance with this order will result in a recommendation that this action be dismissed.

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Dated: December 10, 2014

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