Herrera-Garcia v. CCI Tehachapi et al
Filing
9
ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/22/17 granting 5 , 8 Motions to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be paid in accordance with the court's CDC order filed concurrently herewith. Plaintiff's complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
MANUEL HERRERA-GARCIA,
12
Plaintiff,
13
14
No. 2:16-cv-2832 CKD P
v.
ORDER
CCI TEHACHAPI, et al.,
15
Defendants.
16
Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §
17
18
1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §
19
636(b)(1) and plaintiff has consented to have all matters in this action before a United States
20
Magistrate Judge. See 28 U.S.C. § 636(c).
Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a
21
22
declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
23
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
24
1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the
25
initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.
26
Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
27
month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
28
/////
1
1
the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
2
exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
3
The court is required to screen complaints brought by prisoners seeking relief against a
4
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
5
court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
6
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
7
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
8
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
9
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
10
Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
11
indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
12
490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
13
pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
14
Cir. 1989); Franklin, 745 F.2d at 1227.
15
In order to avoid dismissal for failure to state a claim a complaint must contain more than
16
“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
17
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
18
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
19
statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
20
upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
21
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
22
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
23
at 678. When considering whether a complaint states a claim upon which relief can be granted,
24
the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),
25
and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
26
U.S. 232, 236 (1974).
27
/////
28
/////
2
1
After having conducted the required screening, the court finds that plaintiff’s complaint
2
fails to state a claim upon which relief can be granted. Plaintiff’s complaint must be dismissed.
3
The court will, however, grant leave to file an amended complaint.
4
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
5
complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.
6
Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff’s allegations concern deprivation of property.
7
Plaintiff is informed that the United States Supreme Court has held that “an unauthorized
8
intentional deprivation of property by a state employee does not constitute a violation of the
9
procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful
10
post deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).
11
Thus, where the state provides a meaningful post deprivation remedy, only authorized, intentional
12
deprivations constitute actionable violations of the Due Process Clause. An authorized
13
deprivation is one carried out pursuant to established state procedures, regulations, or statutes.
14
Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg,
15
832 F.2d 1142, 1149 (9th Cir. 1987).
16
Also, plaintiff’s amended complaint must allege in specific terms how each named
17
defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some
18
affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo
19
v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official
20
participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,
21
268 (9th Cir. 1982). Finally, plaintiff cannot sue the State of California, its departments or
22
agencies as they are immune from suit under the Eleventh Amendment. See Dittman v.
23
California, 191 F.3d 1020, 1025-26 (1999).
24
The court cannot refer to a prior pleading in order to make plaintiff’s amended complaint
25
complete. Local Rule 220 requires that an amended complaint be complete in itself without
26
reference to any prior pleading. This is because, as a general rule, an amended complaint
27
supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once
28
plaintiff files an amended complaint, the original pleading no longer serves any function in the
3
1
case. Therefore, in an amended complaint, as in an original complaint, each claim and the
2
involvement of each defendant must be sufficiently alleged.
3
In accordance with the above, IT IS HEREBY ORDERED that:
4
1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 5 & 8) is granted.
5
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees
6
shall be collected and paid in accordance with this court’s order to the Director of the California
7
Department of Corrections and Rehabilitation filed concurrently herewith.
8
3. Plaintiff’s complaint is dismissed.
9
4. Plaintiff is granted thirty days from the date of service of this order to file an amended
10
complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
11
Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
12
number assigned this case and must be labeled “Amended Complaint.” Failure to file an
13
amended complaint in accordance with this order will result in a recommendation that this action
14
be dismissed.
15
Dated: March 22, 2017
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
1
herr2832.14
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?