Azevedo v. Britt
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 8/25/2017 GRANTING 5 Motion to Proceed IFP and DISMISSING 1 Complaint. Within 30 days from the date of this order, plaintiff to complete and submit the Notice of Amendment with the Amended Complaint. Plaintiff to pay the statutory filing fee of $350. All fees to be collected and paid in accordance with this court's order to the Sheriff, Colusa County Jail, 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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ALEX LEONARD AZEVEDO,
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No. 2:17-cv-1609 KJN P
Plaintiff,
v.
ORDER
RONALD W. BRITT,
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Defendant.
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Plaintiff is a jail inmate housed in the Colusa County Jail. Plaintiff seeks relief pursuant
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to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.
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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
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§ 636(b)(1).
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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing
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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will
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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account
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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly
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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.
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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.
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§ 1915(b)(2).
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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 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).
Plaintiff alleges that defendant, a certified shorthand reporter, altered plaintiff’s Marsden1
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motion transcripts.
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The Civil Rights Act under which this action was filed provides as follows:
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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.
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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the
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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983
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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no
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affirmative link between the incidents of police misconduct and the adoption of any plan or policy
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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another
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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an
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affirmative act, participates in another’s affirmative acts or omits to perform an act which he is
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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,
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588 F.2d 740, 743 (9th Cir. 1978).
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Here, plaintiff fails to allege sufficient facts to demonstrate that defendant Britt acted
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under color of state law, or that defendant’s actions violated plaintiff’s constitutional rights or
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other federal law.
The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is
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unable to determine whether the current action is frivolous or fails to state a claim for relief. The
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court has determined that the complaint does not contain a short and plain statement as required
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People v. Marsden, 2 Cal. 3d 118 (Cal. 1970).
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by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a
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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones
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v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least
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some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim.
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Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the
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complaint must be dismissed. The court will, however, grant leave to file an amended complaint.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.
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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each
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named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is
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some affirmative link or connection between a defendant’s actions and the claimed deprivation.
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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743
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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil
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rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
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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 request for leave to proceed in forma pauperis is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Sheriff, Colusa County Jail, filed concurrently herewith.
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3. Plaintiff’s complaint is dismissed.
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4. 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 25, 2017
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALEX LEONARD AZEVEDO,
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No. 2:17-cv-1609 KJN P
Plaintiff,
v.
ORDER
RONALD W. BRITT,
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Defendant.
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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
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Amended Complaint
DATED:
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Plaintiff
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