LaFlamme v. Kern et al

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 8/9/2017 DISMISSING plaintiff's complaint. Within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DON LaFLAMME,

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No. 2:17-cv-1550 KJN P

Plaintiff,
v.

ORDER

KERN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On July 26, 2017, defendants removed this action from the Sacramento

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County Superior Court. (ECF No. 2.) Defendants paid the filing fee.

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Although defendants paid the filing fee, the court may screen the complaint to determine

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whether it is frivolous or malicious, fails to state a claim upon which relief may be granted, or

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

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§ 1915(e)(2).

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

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

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

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

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).

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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Named as defendants are Warden Lizarraga and Secretary Kern. (ECF No. 2 at 6.)

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Plaintiff appears to challenge the validity of a prison disciplinary charging him with attempted

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murder. Plaintiff was found guilty and assessed 359 days of time credits. (Id. at 29.) While

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plaintiff alleges violations of the First Amendment as well as his right to due process and equal

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protection, it is unclear how plaintiff is alleging these rights were violated. For these reasons, the

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complaint is dismissed with leave to amend. If plaintiff files an amended complaint, he must

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clarify the grounds on which he challenges his disciplinary conviction.

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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

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alleged.

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

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1. Plaintiff’s complaint is dismissed.

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2. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the

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dismissal of this action.

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Dated: August 9, 2017

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Laf1550.ord

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DON LaFLAMME,

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No. 2:17-cv-1550 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

KERN, et al.,

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Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
DATED:

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Amended Complaint

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Plaintiff