Dearwester v. California Department of Corrections and Rehabilitation et al

Filing 7

ORDER signed by Magistrate Judge Dale A. Drozd on 3/24/15 ORDERING that Plaintiff's motion to proceed in forma pauperis 2 is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days leave to amend. Clerk of the Court is directed to send plaintiff the court's form for filing a civil rights action.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK LEE DEARWESTER,

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No. 2:15-cv-0443 DAD P

Plaintiff,
v.

ORDER

CDCR et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff 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).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff‟s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month‟s income credited to plaintiff‟s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff‟s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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SCREENING REQUIREMENT

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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 an 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 the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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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.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only „a short and plain

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statement of the claim showing that the pleader is entitled to relief,‟ in order to „give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.‟” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff‟s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person „subjects‟ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S COMPLAINT

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Plaintiff has identified as defendants the California Department of Corrections and

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Rehabilitation, Deuel Vocational Institution, Sergeant Peters, and DOES 1-25. According to the

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complaint, when plaintiff transferred from Deuel Vocational Institution to California State Prison,

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Los Angeles and back to Deuel Vocational Institution, the defendants took possession of his

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property without returning it and/or incorrectly placed limits on the property he was allowed to

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transport with him, resulting in plaintiff losing his reading glasses, twenty-one novels, seven

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magazines, three jars of coffee, and one pair of Nike shower shoes. Plaintiff claims that the

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actions of the defendants violated his right to due process. In terms of relief, plaintiff requests the

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return of his property and any court fees he incurs in bringing this action. (Compl. Attach. &

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Exs.)

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DISCUSSION

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The allegations in plaintiff‟s complaint are so vague and conclusory that the court 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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complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to

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the defendants and must allege facts that support the elements of the claim plainly and succinctly.

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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege

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with at least some degree of particularity overt acts which defendants engaged in that support his

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claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P.

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8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended

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complaint.

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If plaintiff chooses to file an amended complaint, he must allege facts demonstrating how

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the conditions complained of resulted in a deprivation of his federal constitutional or statutory

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

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specific terms how each named defendant was involved in the deprivation of plaintiff‟s rights.

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant‟s actions and the claimed deprivation. Rizzo, 423 U.S. 362; May

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v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at 743. Vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey, 673 F.2d at

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268.

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If plaintiff wishes to proceed on a claim for loss of his property, he is advised that the

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United States Supreme Court has held that “an unauthorized intentional deprivation of property

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by a state employee does not constitute a violation of the procedural requirements of the Due

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Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss

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is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state provides a

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meaningful postdeprivation remedy, only authorized, intentional deprivations constitute
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actionable violations of the Due Process Clause. An authorized deprivation is one carried out

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pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d

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1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th

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Cir. 1987). In his complaint, plaintiff has not alleged any facts suggesting that the taking of his

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property was authorized. The California Legislature has provided a remedy for tort claims

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against public officials in California Government Code, §§ 900, et seq. If plaintiff has not

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attempted to seek redress in the state system, he will not be able to sue in federal court on the

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claim that the state deprived him of property without due process of the law.

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Finally, 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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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion 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 Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff‟s complaint (Doc. No. 1) 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 number

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assigned to this case and must be labeled “Amended Complaint”; failure to file an amended

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

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5. The Clerk of the Court is directed to send plaintiff the court‟s form for filing a civil

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rights action.

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Dated: March 24, 2015

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DAD:9
dear0443.14a

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