Warfield v. Solano County Sheriff Department et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 1/11/2018 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend within 30 days from the date of this order. 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 Solano County Sheriff's Department filed concurrently herewith. (Henshaw, R)

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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 BRODERICK WARFIELD, 12 13 14 15 16 No. 2: 17-cv-2661 KJN P Plaintiff, v. ORDER SOLANO COUNTY SHERIFF’S DEPARTMENT, et al., Defendants. 17 18 Plaintiff is a prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 19 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 22 23 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. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 28 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 15 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 16 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 17 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 18 1227. 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 20 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 24 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 25 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific 26 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what 27 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 28 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). 2 1 In reviewing a complaint under this standard, the court must accept as true the allegations of the 2 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most 3 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 4 grounds, Davis v. Scherer, 468 U.S. 183 (1984). 5 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 6 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 7 court has determined that the complaint does not contain a short and plain statement as required 8 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 9 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 10 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 11 some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim. 12 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the 13 complaint must be dismissed. The court will, however, grant leave to file an amended complaint. 14 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 15 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v. 16 Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each 17 named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is 18 some affirmative link or connection between a defendant’s actions and the claimed deprivation. 19 Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 20 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil 21 rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 23 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 24 complaint be complete in itself without reference to any prior pleading. This requirement exists 25 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 26 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 27 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 28 original complaint, each claim and the involvement of each defendant must be sufficiently 3 1 alleged. 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 5 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 6 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 7 Solano County Sheriff’s Department filed concurrently herewith. 8 3. Plaintiff’s complaint is dismissed. 9 4. 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 dismissal of 17 this action. 18 Dated: January 11, 2018 19 20 21 Warf2661.14 22 23 24 25 26 27 28 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRODERICK WARFIELD, 12 13 14 15 No. 2: 17-cv-2661 KJN P Plaintiff, v. NOTICE OF AMENDMENT SOLANO COUNTY SHERIFF’S DEPARTMENT, et al., Defendants. 16 17 18 19 Plaintiff hereby submits the following document in compliance with the court's order filed______________. _____________ 20 21 22 23 24 25 26 27 28 Amended Complaint DATED: ________________________________ Plaintiff

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