Herrera v. Gray et al

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 8/4/2017 GRANTING 2 Motion to Proceed IFP; ORDERING Clerk to update the docket to reflect that plaintiff's name is properly "Armando Herrera" rather than "Herrera Armando" ; and DISMISSING 1 Complaint with leave to amend within 30 days of service of this order. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO HERRERA,

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Plaintiff,

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No. 2:17-cv-01585 AC P

v.

ORDER

GRAY, et. al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), plaintiff has filed an application to

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proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2.

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I.

Application to Proceed In Forma Pauperis
The court has reviewed plaintiff’s application and finds that it makes the showing required

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by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency

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having custody of plaintiff to collect and forward the appropriate monthly payments for the filing

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fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

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II.

Screening Requirements
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A claim “is [legally] frivolous where 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). “[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.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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

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has an arguable legal and factual basis. Id.
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading
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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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III.

Screening Order

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Plaintiff’s allegations are too vague to proceed. He alleges that, on July 17, 2017,

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defendants “establish[ed] the custom and policy of forcing their way, causing harassment,

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detriment of character/name defamed, emotional, and mental anguish.” ECF No. 1 at 3. It is

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unclear from this allegation what actions defendants took or how they injured plaintiff.1 The

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court will dismiss this complaint and give plaintiff leave to amend in order to clarify his

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allegations.

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IV.

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Leave to Amend
Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an

amended complaint it should observe the following:

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Plaintiff must demonstrate how each of the named defendants, acting under color of state

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law, has violated his federal constitutional or statutory rights. See West v. Atkins, 487 U.S. 42,

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48 (1988). The amended complaint must allege the circumstances of defendants’ alleged

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violations in specific terms by describing how, when, and where each defendant violated

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plaintiff’s rights. Plaintiff is cautioned that there can be no liability under 42 U.S.C. § 1983

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unless there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Finally, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board

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of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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The amended complaint must also contain a caption including the names of all defendants.
Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Additionally, given the very recent date of the alleged incident, there is a strong possibility that
plaintiff has not exhausted his administrative remedies prior to filing this suit. Nevertheless,
plaintiffs are not required to plead exhaustion and, as such, the court will not dismiss the action
on this basis. See Jones v. Bock, 549 U.S. 199, 214-216 (2007).
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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court notes that any amended complaint should be as concise as possible in
fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of
procedural or factual background which has no bearing on his legal claims.

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V.

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Summary of the Order for Pro Se Litigant
You have been granted in forma pauperis status and will not have to pay the entire filing

fee immediately.

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The court has found that your claims, as stated, are not suitable to proceed. It is unclear

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what your precise allegations are or how each of the named defendants personally violated your

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rights. You are being given a chance to submit an amended complaint which better explains your

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claims.

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VI.

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Conclusion
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. The Clerk of Court shall update the docket to reflect that plaintiff’s name is

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properly “Armando Herrera” rather than “Herrera Armando.”

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4. Plaintiff’s complaint is dismissed with leave to amend within 30 days of service of

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this order.
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5. Failure to comply with this order may result in dismissal of this action.
DATED: August 4, 2017

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