Roberson v. Smith et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/21/2019 DISMISSING 18 Amended Complaint with leave to amend within 30 days from the date of service of this order. (Henshaw, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KENNETH WAYNE ROBERSON,
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Plaintiff,
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No. 2:17-cv-2649 CKD P
v.
ORDER
ALBERT SMITH, et al.,
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Defendants.
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Plaintiff is a California prisoner proceeding pro se and seeking relief pursuant to 42
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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28
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U.S.C. § 636(b)(1) and plaintiff has consented to have all matters in this action before a United
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States Magistrate Judge. See 28 U.S.C. § 636(c). On May 3, 2018, the court screened plaintiff’s
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complaint, as the court is required to do under 28 U.S.C. § 1915(A), and dismissed plaintiff’s
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complaint with leave to amend. Plaintiff has now filed an amended complaint.
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, 551 U.S. 89, 93-94 (2007), and
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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 amended complaint and finds that it fails to state a
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claim upon which relief can be granted under federal law. Plaintiff’s amended complaint must be
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dismissed. The court will, however, grant plaintiff one final opportunity to state an actionable
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claim in a second amended complaint.
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In his first claim in his amended complaint, plaintiff blames certain defendants for the
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presentation of fraudulent evidence at his criminal trial. Plaintiff seeks damages on this claim.
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As plaintiff was informed in the court’s original screening order, claims brought in a 42 U.S.C. §
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1983 action which imply the invalidity of a conviction or sentence which has not been overturned
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on appeal or through collateral proceedings are barred by Heck v. Humphrey, 512 U.S. 477,486-
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87 (1994).
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In his second claim, plaintiff asserts his First Amendment rights were violated when he
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was denied certain mail at the Glenn County Jail. Exhibits attached to plaintiff’s first amended
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complaint indicate plaintiff sent certain court documents outside the jail for copying. ECF No. 18
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at 28-31. The mail which was initially denied consists of the copies being sent back to plaintiff.
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However, it appears the decision to deny plaintiff the copies was reversed through the jail
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grievance process. ECF No. 18 at 28. Therefore, it is not clear what damage, if any, plaintiff
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suffered as a result of his initially being denied mail.
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More generally, plaintiff is informed that if he chooses to file a second amended
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complaint, plaintiff must demonstrate how the conditions complained of have resulted in a
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deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
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Also, in his amended complaint, plaintiff must allege in specific terms how each named defendant
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is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative
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link or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode,
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423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official participation in
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civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.
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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 second amended complaint complete. Local Rule 220 requires that any 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 amended complaint is dismissed.
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2. Plaintiff is granted thirty days from the date of service of this order to file a second
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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules
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of Civil Procedure, and the Local Rules of Practice. The second amended complaint must bear
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the docket number assigned this case and must be labeled “Second Amended Complaint.” Failure
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to file an amended complaint in accordance with this order will result in a recommendation that
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this action be dismissed.
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Dated: February 21, 2019
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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