Hoeft v. Ballon

Filing 12

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/5/17: Plaintiff's motion 11 is granted. The Clerk of Court is directed to change the nature of suit code to a civil rights action and assign a District Judge to this action. The scheduling order 5 is vacated. Plaintiff's complaint is dismissed. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint. (Kaminski, H)

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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 MONICA HOEFT, 12 Plaintiff, 13 14 15 No. 2:16-cv-2615 CKD PS v. ORDER COMMISSIONER OF SOCIAL SECURITY, et al., Defendants. 16 17 Plaintiff is proceeding in this action pro se and in forma pauperis. This action was 18 19 initially opened as a social security action. Plaintiff has requested that the case be redesignated 20 because she contends that this is a civil rights action. The case will therefore be redesignated. The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 21 22 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 23 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 24 § 1915(e)(2). 25 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 26 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 27 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 28 ///// 1 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. 3 In order to avoid dismissal for failure to state a claim a complaint must contain more than 4 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 5 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 6 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 7 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 8 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 9 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 10 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 11 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 12 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 13 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 14 U.S. 232, 236 (1974). 15 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 16 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 17 court has determined that the 131 page complaint does not contain a short and plain statement as 18 required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, 19 a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 20 v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at 21 least some degree of particularity overt acts which defendants engaged in that support plaintiff’s 22 claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), 23 the complaint must be dismissed. The court will, however, grant leave to file an amended 24 complaint. 25 If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional 26 grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a). 27 Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation 28 of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 2 1 The Civil Rights Act under which this action was filed provides as follows: 2 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. 3 4 5 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 6 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 7 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 8 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 9 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 10 omits to perform an act which he is legally required to do that causes the deprivation of which 11 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 12 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 13 their employees under a theory of respondeat superior and, therefore, when a named defendant 14 holds a supervisorial position, the causal link between him and the claimed constitutional 15 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 16 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague 17 and conclusory allegations concerning the involvement of official personnel in civil rights 18 violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 19 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 20 make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended 21 complaint be complete in itself without reference to any prior pleading. This is because, as a 22 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 23 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 24 longer serves any function in the case. Therefore, in an amended complaint, as in an 25 original complaint, each claim and the involvement of each defendant must be sufficiently 26 alleged. 27 ///// 28 ///// 3 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s motion (ECF No. 11) is granted. The Clerk of Court is directed to change 3 the nature of suit code to a civil rights action and assign a District Judge to this action; 4 2. The scheduling order (ECF No. 5) is vacated; 5 3. Plaintiff’s complaint is dismissed; and 6 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 7 complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the 8 Local Rules of Practice; the amended complaint must bear the docket number assigned this case 9 and must be labeled “Amended Complaint”; plaintiff must file an original and two copies of the 10 amended complaint; failure to file an amended complaint in accordance with this order will result 11 in a recommendation that this action be dismissed. 12 Dated: January 5, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 4 hoeft2615.ifp-lta 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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