Garcia v. Grether et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/18/2016 GRANTING plaintiff's 9 , 10 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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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSE GARCIA,
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No. 2:16-cv-1915 CKD P
Plaintiff,
v.
ORDER
K. GRETHER, et al.,
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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).
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Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a
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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the
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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.
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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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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).
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In his complaint, plaintiff asserts he informed defendants Grether, Aguilera and another
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unidentified officer that if he were to be housed in general population, plaintiff would be attacked.
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Plaintiff alleges these defendants ignored plaintiff’s warning and plaintiff was placed in general
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population anyway. However, plaintiff does not allege that he was attacked or injured in any
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other way as a result of the actions of any these defendants. Plaintiff also alleges defendant Davis
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called plaintiff names while plaintiff was in a holding cell. Plaintiff seeks monetary damages.
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Because verbal harassment generally does not rise to the level of a violation of the
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Constitution, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) and plaintiff fails to
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otherwise allege any actionable injury, plaintiff’s complaint must be dismissed. The court will,
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however, grant plaintiff leave to file an amended complaint in order to cure the deficiencies in his
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pleadings.
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Plaintiff is informed that the Eighth Amendment forbids cruel and unusual punishment
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against prisoners. Cruel and unusual punishment is properly alleged when a plaintiff points to
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facts indicating he was injured as a result of at least deliberate indifference by a prison official to
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a substantial risk of serious physical harm. Farmer v. Brennan, 511 U.S. 825, 828 (1994).
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Plaintiff is also informed that the court cannot refer to a prior pleading in order to make
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plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be
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complete in itself without reference to any prior pleading. This is because, as a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th
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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any
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function in the case. Therefore, in an amended complaint, as in an original complaint, each claim
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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 request for leave to proceed in forma pauperis (ECF No. (9 & 10) is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees
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shall be collected and paid in accordance with this court’s order to the Director of the California
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Department of Corrections and Rehabilitation filed concurrently herewith.
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3. Plaintiff’s complaint is dismissed.
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4. 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 18, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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