Starr v. United States et al

Filing 54

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/4/2017 ORDERING plaintiff's amended complaint is DISMISSED; all outstanding motions are DENIED ; and plaintiff is GRANTED 30 days to file a second amenended complaint. Motions 28 , 32 , 38 , 40 , 41 , 43 , 45 , 48 , 49 terminated.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBIN GILLEN STARR,

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No. 2:16-cv-1829 CKD P

Plaintiff,
v.

ORDER

UNITED STATES, et al.,

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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 is proceeding in forma pauperis. This proceeding was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

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On November 9, 2016, plaintiff’s complaint was dismissed with leave to file an amended

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complaint. In response to that order, plaintiff filed an amended complaint on November 21, 2016

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(ECF No. 25).

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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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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The court has reviewed plaintiff’s amended complaint. Despite the directions given to

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plaintiff when plaintiff’s original complaint was dismissed, the amended complaint still does not

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state a claim upon which relief can be granted and is essentially incoherent. Accordingly,

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plaintiff’s amended complaint must be dismissed. The court will grant plaintiff one more

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opportunity to attempt to state a claim upon which relief can be granted. If plaintiff elects to file

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a second amended complaint, he must adhere to all of the instructions given in the court’s

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November 9, 2016 order.

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Plaintiff is once again informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s second 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 a second amended complaint, the original

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

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in an original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.
Finally, the court notes that after plaintiff filed his amended complaint, plaintiff filed

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several other documents which are mostly incoherent as well. All outstanding motions and

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requests will be denied and plaintiff shall not file anything further with the court until the court

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has had an opportunity to review plaintiff’s second amended complaint.

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

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1. Plaintiff’s amended complaint is dismissed.

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2. All outstanding motions and requests are denied.

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3. Plaintiff is granted thirty days to file a second amended complaint that complies with

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the requirements of the court’s November 9, 2016 order, the Civil Rights Act, the Federal Rules

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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint.”

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4. Failure to comply with any term of this order will result in a recommendation that this

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action be dismissed.

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Dated: January 4, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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