Piper v. Harveys Casino et al

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/9/16 ORDERING that Plaintiff's 7 request to proceed in forma pauperis is GRANTED. Plaintiff's complaint is dismissed with leave to amend within 30 days from the date of service of this order. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DOUGLAS PIPER,

12
13
14

No. 2:16-cv-2374 GEB CKD PS

Plaintiff,
v.

ORDER

HARVEYS CASINO, et al.,

15

Defendant.

16
17

Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to

18

28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by

19

Local Rule 302(c)(21).

20

Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable

21

to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

22

pauperis will be granted. 28 U.S.C. § 1915(a).

23

The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

24

action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

25

or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

26

§ 1915(e)(2).

27

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

28

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
1

1

Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

2

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

3

490 U.S. at 327.

4

In order to avoid dismissal for failure to state a claim a complaint must contain more than

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

U.S. 232, 236 (1974).

16

The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

17

unable to determine whether the current action is frivolous or fails to state a claim for relief. The

18

court has determined that the complaint does not contain a short and plain statement as required

19

by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

20

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

21

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

22

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

23

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

24

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

25

complaint.

26

If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional

27

grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a).

28

Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation
2

1
2
3
4
5
6

of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
Plaintiff brings this action under 42 U.S.C. § 1983. The Civil Rights Act provides as
follows:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

7

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

8

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

9

Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

10

(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

11

meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

12

omits to perform an act which he is legally required to do that causes the deprivation of which

13

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

14

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

15

their employees under a theory of respondeat superior and, therefore, when a named defendant

16

holds a supervisorial position, the causal link between him and the claimed constitutional

17

violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

18

Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague

19

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

20

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

21

Plaintiff names as defendants Harveys Casino and Barton Hospital. These defendants do

22

not appear to be state actors. If plaintiff in the amended complaint names these defendants, in

23

order for a section 1983 claim to lie, plaintiff must demonstrate that the conduct complained of

24

constituted state action by these defendants.

25

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

26

make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended

27

complaint be complete in itself without reference to any prior pleading. This is because, as a

28

general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
3

1

F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

2

longer serves any function in the case. Therefore, in an amended complaint, as in an

3

original complaint, each claim and the involvement of each defendant must be sufficiently

4

alleged.

5

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

6

1. Plaintiff’s request to proceed in forma pauperis (ECF No. 7) is granted;

7

2. Plaintiff’s complaint is dismissed; and

8

3. Plaintiff is granted thirty days from the date of service of this order to file an amended

9

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

10

Local Rules of Practice; the amended complaint must bear the docket number assigned this case

11

and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the

12

amended complaint; failure to file an amended complaint in accordance with this order will result

13

in a recommendation that this action be dismissed.

14

Dated: December 9, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

15
16
17

4 piper2374.ifp-lta

18
19
20
21
22
23
24
25
26
27
28
4