Smith v. Stockton Police Department, et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/22/2016 ORDERING that plaintiff's 9 Second Amended Complaint is DISMISSED. Plaintiff is GRANTED thirty days to file a third amended complaint. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERESA SMITH,

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No. 2:16-cv-0493 KJM CKD PS
Plaintiff,

v.

ORDER

STOCKTON POLICE DEPARTMENT,
et al.,
Defendants.

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Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed a
second amended complaint.
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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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).
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 Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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

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least some degree of particularity overt acts which defendants engaged in that support plaintiff’s

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claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2),

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the complaint must be dismissed. The court will, however, grant leave to file a second amended

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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. Federal Rule of Civil Procedure 8(a).

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Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation

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of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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The second amended complaint cures none of the deficiencies found in the original and

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first amended complaints. To guide plaintiff in filing a third amended complaint, the court again

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advises plaintiff of the following.

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The second amended complaint sets forth allegations regarding incidents involving

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officers of the Stockton Police Department. Some of the incidents involve plaintiff’s children.

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Plaintiff was previously advised that she may not proceed on her childrens’ claims in propria

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persona.

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The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of

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the United States . . . to the deprivation of any rights, privileges, or immunities secured by the

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Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other

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proper proceeding for redress. 42 U.S.C. § 1983. The statute requires that there be an actual

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connection or link between the actions of the defendants and the deprivation alleged to have been

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suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v.

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Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional

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right, within the meaning of § 1983, if he does an affirmative act, participates in another's

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affirmative acts or omits to perform an act which he is legally required to do that causes the

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deprivation of which 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), cert. denied, 442 U.S. 941 (1979). Vague

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and conclusory allegations concerning the involvement of official personnel in civil rights

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

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Plaintiff is advised that in any amended complaint, she must set forth separate causes of

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action and should not plead in one complaint incidents that are unrelated. In addition, if plaintiff

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intends to pursue claims against a municipality, plaintiff must set forth facts alleging that local
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government officials have intentionally violated plaintiff’s constitutional rights, the violation was

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part of policy or custom and was not an isolated incident, and that there is a link between the

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specific policy or custom to the plaintiff’s injury. See Monell v. Department of Social Servs., 436

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U.S. 658, 690-92 (1978).

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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 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

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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 second amended complaint is dismissed; and

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2. Plaintiff is granted thirty days from the date of service of this order to file a third

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amended complaint that complies with the requirements of the Federal Rules of Civil Procedure,

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and the Local Rules of Practice; the third amended complaint must bear the docket number

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assigned this case and must be labeled “Third Amended Complaint”; plaintiff must file an

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original and two copies of the third amended complaint; failure to file a third amended complaint

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

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Dated: July 22, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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