Thomas v. Roberts et al

Filing 15

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/21/16 ORDERING that plaintiff's complaint is DISMISSED with 30 days from the date of service of this order to file an amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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No. 2:16-cv-0724 CKD P
Plaintiff,

v.

ORDER

BRIAN ROBERTS, et al.,
Defendants.

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

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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1) and plaintiff has consented to have all matters in this action before a United States

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Magistrate Judge. See 28 U.S.C. § 636(c).

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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 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 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, 556 U.S. 662, 678 (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, 556 U.S.

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at 678. 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 allegations in plaintiff’s complaint concern parole proceedings. Plaintiff does not

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state a claim upon which relief can be granted under federal law with respect to any of his

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allegations.1 Accordingly, plaintiff’s complaint will be dismissed. The court will, however, give

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plaintiff an opportunity to assert a claim upon which relief can be granted in an amended

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complaint.

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

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complained of have resulted in a deprivation of plaintiff’s Constitutional or other federal rights.

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See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff is informed that his federal rights

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with respect to California parole proceedings are very limited and essentially include only the

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Plaintiff attempts to assert claims arising under California law including libel and slander.
However, federal courts generally do not have jurisdiction over such claims. See 28 U.S. § 1330
et sq.
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right to be heard at the hearing and a statement of reasons why parole was denied. Swarthout v.

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Cooke, 562 U.S. 216, 862 (2011). Furthermore, parole board members are absolutely immune

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from suits for damages with respect to decisions denying parole. See Bermudez v. Duenas, 936

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F.2d 1064, 1066 (9th Cir. 1991). Finally, plaintiff cannot bring any claim in a § 1983 action

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which implies the invalidity of the decision to deny him parole. See Heck v. Humphrey, 512 U.S.

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477 (1994).
Also, plaintiff’s amended complaint must allege in specific terms how each named

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

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

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v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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

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1. Plaintiff’s complaint is dismissed.

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2. 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.” Failure to file an

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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Dated: October 21, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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