Johnson, Jr. v. California Health Care Facility et al

Filing 4

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/27/2015 GRANTING plaintiff's 2 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED with leave to file an amended complaint within 30 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARVESTER J. JOHNSON, JR., 12 13 14 15 16 No. 2:15-cv-0650 CKD P Plaintiff, v. ORDER CALIFORNIA HEALTH CARE FACILITY, et al., Defendants. 17 18 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 With respect to plaintiff’s request to proceed in forma pauperis, plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to 23 proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of 24 $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By separate order, the court will 25 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 26 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly 27 payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust 28 account. These payments will be forwarded by the appropriate agency to the Clerk of the Court 1 1 each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 2 U.S.C. § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 (2009). Furthermore, a claim upon 20 which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has 21 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 23 678. When considering whether a complaint states a claim upon which relief can be granted, the 24 court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and 25 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 28 The court finds the allegations in plaintiff’s complaint fail to state a claim upon which relief can be granted. Although the Federal Rules of Civil Procedure adopt a flexible pleading 2 1 policy, a complaint must give fair notice and state the elements of the claim plainly and 2 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff 3 must allege with at least some degree of particularity overt acts which defendants engaged in that 4 support plaintiff’s claim. Id. Plaintiff’s complaint must be dismissed. The court will, however, 5 grant leave to file an amended complaint. 6 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 7 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 8 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how 9 each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there 10 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 11 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory 13 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 14 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 15 It appears plaintiff may be challenging the execution of his sentence and may be seeking 16 an earlier date of release. Plaintiff is informed that when a state prisoner challenges the legality 17 of his custody and the relief he seeks is the determination of his entitlement to an earlier or 18 immediate release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 19 U.S. 475, 500 (1973). Therefore, if plaintiff is seeks earlier release, he should not file an 20 amended complaint. Instead, he should initiate an action for a writ of habeas corpus. 21 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 22 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 23 complaint be complete in itself without reference to any prior pleading. This is because, as a 24 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 25 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 26 longer serves any function in the case. Therefore, in an amended complaint, as in an original 27 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 28 ///// 3 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 4 shall be collected and paid in accordance with this court’s order to the Director of the California 5 Department of Corrections and Rehabilitation filed concurrently herewith. 6 3. Plaintiff’s complaint is dismissed. 7 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 8 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 9 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 10 assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and 11 two copies of the amended complaint; failure to file an amended complaint in accordance with 12 this order will result in a recommendation that this action be dismissed. 13 Dated: March 27, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 1 john0650.14 20 21 22 23 24 25 26 27 28 4

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