Ollie v. Brown et al.

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/30/2017 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's complaint is DISMISSED for failure to state a claim. Plaintiff has 30 days to file an amended complaint in accordance with this order.(Yin, K)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE D. OLLIE, JR., 12 13 14 No. 2:16-cv-2808 JAM CKD P Plaintiff, v. ORDER EDMUND G. BROWN, JR., et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 7 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 8 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 9 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 10 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 11 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 12 Cir. 1989); Franklin, 745 F.2d at 1227. 13 In order to avoid dismissal for failure to state a claim a complaint must contain more than 14 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 15 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 16 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 17 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 18 Here, plaintiff sues Governor Brown and two officials of the state Victim Compensation 19 and Government Claims Board over the Board’s handling plaintiff’s lost property complaint, 20 which was dismissed for untimeliness. (ECF No. 1 at 3.) Plaintiff has not stated a federal claim, 21 as any procedural claim against the Board would arise under California law. Moreover, 22 plaintiff’s allegations do not suggest any defendant violated his rights by informing him that his 23 state claim “failed to meet the six-month deadline.” (Id.) 24 As it fails to state a claim, plaintiff’s complaint must be dismissed. However, the court 25 will grant leave to file an amended complaint. While plaintiff will be given the opportunity to 26 amend, it is not for the purpose of adding new claims. See George v. Smith, 507 F.3d 605, 607 27 (7th Cir. 2007). If plaintiff chooses to amend the complaint, he should carefully read this 28 screening order and focus his efforts on curing the deficiencies set forth above. 2 1 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 2 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 3 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, plaintiff’s amended complaint must allege in 4 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 5 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 6 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 7 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 8 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 9 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 10 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 11 complaint be complete in itself without reference to any prior pleading. This is because, as a 12 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 13 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 14 longer serves any function in the case. Therefore, in an amended complaint, as in an original 15 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 18 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 19 shall be collected and paid in accordance with this court’s order to the Director of the California 20 Department of Corrections and Rehabilitation filed concurrently herewith. 21 3. Plaintiff’s complaint is dismissed for failure to state a claim; 22 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 23 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 24 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 25 assigned this case and must be labeled “Amended Complaint”; failure to file an amended 26 //// 27 //// 28 //// 3 1 complaint in accordance with this order will result in a recommendation that this action be 2 dismissed. 3 Dated: January 30, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 2 / olli2808.14.new 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?