Lacy v. State of California

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 6/1/2015 GRANTING plaintiff's 6 request to proceed IFP. Plaintiff's complaint is DISMISSED. Within 30 days, plaintiff shall complete and return the Notice of Amendment, with the required documents. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE STERLING LACY,

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Plaintiff,

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No. 2:15-cv-0639 TLN KJN P

v.

ORDER

STATE OF CALIFORNIA,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

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

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).
Plaintiff 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 is granted.
The court is required to screen complaints brought by prisoners seeking 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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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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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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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In his 18 page complaint, plaintiff refers to a cover-up, negligence, a malicious assault or

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attack on November 27, 2013, “staff member corruption negligence,” denial of medical care

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following the attack, and “a conspiracy to cover up a crime.” (ECF No. 1, passim.) Plaintiff

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names no individuals as defendants; rather, plaintiff named only the State of California as a
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defendant. In the text of the complaint, plaintiff mentions “A. Alkire” and “A. Tovar” in

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connection with “an unlawful act” on November 27, 2013. (ECF No. 1 at 4-5.)

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The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties

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against a state or state agency unless the state or the agency consents to such suit. See Quern v.

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Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v.

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Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of California

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has not consented to suit. Accordingly, plaintiff’s claims against the State of California are

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frivolous and must be dismissed.

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Moreover, plaintiff is already pursuing a civil rights complaint based on the events of

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November 17, 2013. In Lacy v. Folk, et al., Case No. 2:14-cv-2770 AC (E. D. Cal.), plaintiff

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alleges that while he was housed at High Desert State Prison, he was subjected to an excessive

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use of force on November 27, 2013. (Id., ECF No. 1 at 2-3.) Plaintiff included allegations of a

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conspiracy and a cover-up, as well as deliberate indifference to plaintiff’s serious medical needs,

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and state law negligence claims. (Id., ECT No. 1 at 3-4.) In this earlier-filed case, plaintiff

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names A. Alkire and A. Tovar as defendants. (Id., ECF No. 1 at 3.)

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The allegations in the instant complaint are not clear, but it appears that the allegations in

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the instant complaint are in large part the same as those raised in Case No. 2:14-cv-2770 AC.

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Plaintiff is advised that he cannot pursue the same claims in two different cases. Allegations

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arising from the same incident must be raised in the same lawsuit. If plaintiff seeks to add

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allegations concerning the events of November 27, 2013, he must seek leave to file an amended

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complaint in Case No. 2:14-cv-2770 AC.

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Therefore, in an abundance of caution, the court will grant plaintiff leave to file an

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amended complaint to pursue claims that he has not raised in Case No. 2:14-cv-2770 AC, and

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which are not based on the events of November 27, 2013. In the alternative, plaintiff may file a

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notice of voluntary dismissal and avoid imposition of an additional $350.00 filing fee. Plaintiff is

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cautioned that if he files an amended complaint in which he re-alleges claims raised in Case No.

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2:14-cv-2770 AC, the undersigned will recommend dismissal of the action as duplicative of Case

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No. 2:14-cv-2770 AC, and will impose the $350.00 filing fee.1

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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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 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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

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

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff’s complaint is dismissed.

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3. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice; and

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action, 28 U.S.C.
§§ 1914(a), 1915(b)(1), which will be deducted in installments from plaintiff’s prison trust
account.
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b. An original and one copy of the Amended Complaint OR a notice of voluntary

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dismissal. Any amended complaint shall comply with the requirements of the Civil Rights Act,

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the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint

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must also bear the docket number assigned to this case and must be labeled “Amended

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Complaint.”

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Failure to respond to this order will result in a recommendation that this action be

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dismissed.

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Dated: June 1, 2015

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/lacy0639.14+

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE STERLING LACY,

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No. 2:15-cv-0639 TLN KJN P

Plaintiff,
v.

NOTICE

STATE OF CALIFORNIA,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
_____________

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OR

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_____________

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Plaintiff chooses to voluntarily dismiss this action
and avoid imposition of the $350.00 filing fee.

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Amended Complaint

DATED:
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Plaintiff