Helton v. Spearman et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/30/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING plaintiff's complaint with leave to amend within 30 days from the date of service of this order. Plaintiff to pay the $350 statutory filing fee. All fees to be collected and paid in accordance with this court's order 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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RICHARD J. HELTON,
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No. 2:17-cv-1694 CKD P
Plaintiff,
v.
ORDER
MARION E. SPEARMAN, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §
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1983. 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 requests leave to proceed in forma pauperis. Since plaintiff has submitted a
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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the
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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.
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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 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 where 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); Franklin, 745 F.2d at 1227.
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In order to avoid dismissal for failure to state a claim a complaint must contain more than
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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
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at 678. When considering whether a complaint states a claim upon which relief can be granted,
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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),
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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
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U.S. 232, 236 (1974).
The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon
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which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The
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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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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.
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Cassidy, 625 F.2d 227 (9th Cir. 1980). It appears plaintiff’s claims concern the inmate grievance
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process at his prison. However, plaintiff has no constitutional right to a prison grievance
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procedure. Ramirez v. Galazza, 334 F.3d 850, 860 (9th Cir. 2003). Therefore, generally
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speaking, plaintiff has no claim pertaining only to the processing of grievances. Also, to the
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extent plaintiff alleges he is being unlawfully incarcerated and the relief he seeks is the
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determination of his entitlement to an earlier or immediate release, he must seek such relief
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through a petition for writ of habeas corpus, not a complaint brought under 42 U.S.C. § 1983.
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Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
In his amended complaint, plaintiff must allege in specific terms how each named
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defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some
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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo
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v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official
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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,
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268 (9th Cir. 1982).
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Finally, 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 is because, as a
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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently 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 (ECF No. 2) is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees
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shall be collected and paid in accordance with this court’s order to the Director of the California
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Department of Corrections and Rehabilitation filed concurrently herewith.
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3. Plaintiff’s complaint is dismissed.
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4. Plaintiff is granted thirty days from the date of service of this order to file an amended
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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
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number assigned this case and must be labeled “Amended Complaint.” Failure to file an
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amended complaint in accordance with this order will result in a recommendation that this action
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be dismissed.
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Dated: August 30, 2017
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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