Evans v. Fox et al

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/14/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay filing fee of $350. All payments to be collected in accordance with the notice to CDCR filed concurrently herewith. (Henshaw, R)

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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 GENE EVANS, 12 Plaintiff, 13 14 No. 2:16-cv-1997-EFB P v. ROBERT FOX, et al., 15 ORDER GRANTING IFP AND SCREENING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A Defendants. 16 17 Plaintiff , a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983, has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. 19 § 1915. 20 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 21 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 II. Screening Requirement and Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 III. 25 Screening Order The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it 26 must be dismissed for failure to state a viable claim. First, the complaint names various 27 defendants but includes no allegations against them. The complaint lists Warden Fox, Brian 28 ///// 2 1 Duffy, and officer Tabbs as defendants. ECF No. 1 at 3, 9.1 The complaint fails to state a claim 2 against any of these defendants because there are no allegations referencing them or otherwise 3 linking them to a violation of plaintiff’s federal constitutional or statutory rights. Second, the 4 allegations in the complaint are too vague and conclusory to state a cognizable claim for relief. 5 The complaint lists Lasseiter, Montemayor, and B.J. as defendants, but the only reference to them 6 is in a third party declaration, submitted with the complaint, which states that each of these 7 defendants made disparaging or threatening comments to plaintiff. Id. at 5. It is not clear whether 8 these alleged statements are intended to serve as a basis for any § 1983 claims. If they are, they 9 are not sufficient, as verbal harassment, by itself, does not violate the Eighth Amendment. See 10 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). In the body of the complaint, plaintiff 11 alleges that officer Ballenger, who is not identified as a defendant, failed to protect him from an 12 attack by another inmate and that officer Mendoza, who is also not identified as a defendant, 13 retaliated against plaintiff. However, a complaint must provide defendants with fair notice of the 14 claims against them. If plaintiff wishes to purse a claim against officers Ballenger or Mendoza, 15 he must properly identify them as defendants. See Fed. R. Civ. P. 10(a). 16 Based on the foregoing, plaintiff fails to state a claim for relief and his complaint must be 17 dismissed. Plaintiff may, if he chooses, amend his complaint to correct these deficiencies. Lopez 18 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se 19 litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff 20 choose to file an amended complaint, the amended complaint shall clearly set forth the claims and 21 allegations against each defendant. Any amended complaint must cure the deficiencies identified 22 above and also adhere to the following requirements: 23 Any amended complaint must identify as a defendant only persons who personally 24 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 25 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 26 ///// 27 1 28 This and subsequent page number citations to plaintiff’s complaint are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by plaintiff. 3 1 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 2 legally required to do that causes the alleged deprivation). 3 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 4 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 5 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 6 Any amended complaint must be written or typed so that it so that it is complete in itself 7 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 8 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 9 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 10 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 11 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 12 1967)). 13 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 14 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 15 See E.D. Cal. L.R. 110. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted. 18 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 19 in accordance with the notice to the California Department of Corrections and 20 Rehabilitation filed concurrently herewith. 21 3. The complaint is dismissed with leave to amend within 30 days. The complaint 22 must bear the docket number assigned to this case and be titled “Amended 23 Complaint.” Failure to comply with this order will result in dismissal of this 24 action for failure to prosecute. If plaintiff files an amended complaint stating a 25 cognizable claim the court will proceed with service of process by the United 26 States Marshal. 27 Dated: November 14, 2017. 28 4

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