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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DON LaFLAMME, 12 13 14 No. 2:17-cv-1550 KJN P Plaintiff, v. ORDER KERN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On July 26, 2017, defendants removed this action from the Sacramento 19 County Superior Court. (ECF No. 2.) Defendants paid the filing fee. 20 Although defendants paid the filing fee, the court may screen the complaint to determine 21 whether it is frivolous or malicious, fails to state a claim upon which relief may be granted, or 22 seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. 23 § 1915(e)(2). 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 26 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 27 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 28 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 1 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 2 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 3 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 4 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 5 1227. 6 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 7 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 8 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 9 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 10 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 11 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 12 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific 13 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what 14 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 15 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). 16 In reviewing a complaint under this standard, the court must accept as true the allegations of the 17 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most 18 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 19 grounds, Davis v. Scherer, 468 U.S. 183 (1984). 20 Named as defendants are Warden Lizarraga and Secretary Kern. (ECF No. 2 at 6.) 21 Plaintiff appears to challenge the validity of a prison disciplinary charging him with attempted 22 murder. Plaintiff was found guilty and assessed 359 days of time credits. (Id. at 29.) While 23 plaintiff alleges violations of the First Amendment as well as his right to due process and equal 24 protection, it is unclear how plaintiff is alleging these rights were violated. For these reasons, the 25 complaint is dismissed with leave to amend. If plaintiff files an amended complaint, he must 26 clarify the grounds on which he challenges his disciplinary conviction. 27 28 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 2 1 complaint be complete in itself without reference to any prior pleading. This requirement exists 2 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 3 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 4 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 5 original complaint, each claim and the involvement of each defendant must be sufficiently 6 alleged. 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s complaint is dismissed. 9 2. Within thirty days from the date of this order, plaintiff shall complete the attached 10 Notice of Amendment and submit the following documents to the court: 11 a. The completed Notice of Amendment; and 12 b. An original and one copy of the Amended Complaint. 13 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 14 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 15 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 16 Failure to file an amended complaint in accordance with this order may result in the 17 dismissal of this action. 18 Dated: August 9, 2017 19 20 21 22 Laf1550.ord 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DON LaFLAMME, 12 13 14 No. 2:17-cv-1550 KJN P Plaintiff, v. NOTICE OF AMENDMENT KERN, et al., 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff hereby submits the following document in compliance with the court's order filed______________. DATED: _____________ Amended Complaint ________________________________ Plaintiff

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