Gleason v. Neuschmid

Filing 48

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/20/2018 DISMISSING 31 and 45 First Amended Complaint and GRANTING Plaintiff 30 days from the date of service of this order to file a Second Amended Complaint. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STANLEY GLEASON,

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No. 2:18-cv-0135 MCE CKD P

Plaintiff,

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v.

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ORDER

R. NEUSCHMID, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel. On April 24, 2018, plaintiff’s

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complaint was dismissed with leave to amend. Plaintiff filed his amended complaint on July 16,

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2018 and is now before the court for screening.1
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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The court notes from review of the docket that since plaintiff filed his amended complaint,
plaintiff has filed 5 requests for status and / or requests that the court take action. Plaintiff is
informed that the court has a heavy caseload and the court’s screening of plaintiff’s amended
complaint within four months is not atypical.
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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).

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The court finds the allegations in plaintiff’s amended complaint so vague and conclusory

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that the amended complaint fails to state a claim upon which relief can be granted. The court has

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determined that the amended complaint does not contain a short and plain statement as required

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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. Plaintiff’s amended complaint will be dismissed and plaintiff will be given a final opportunity

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to state a claim upon which he may proceed in a second amended complaint.
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As to the contents of his second amended complaint, plaintiff should review the court’s

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April 24, 2018 screening order concerning plaintiff’s original complaint. Most importantly,

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plaintiff cannot simply assert a defendant has violated one of plaintiff’s Constitutional rights.

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Plaintiff must 1) describe the alleged violations with facts including the who, what, where, and

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when of the violations, and 2) describe the alleged injuries resulting from a defendant’s conduct.

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For example, in order to state a claim for violation of the Eighth Amendment, plaintiff must point

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to facts indicating that a particular defendant subjected plaintiff to conduct which, under the law,

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amounts to cruel and unusual punishment, and that plaintiff actually suffered an injury from the

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defendant’s conduct.

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Also, plaintiff appears to attempt to state claims arising under California law. Plaintiff is

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informed that the court may have jurisdiction to hear claims arising under California law if

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plaintiff states a qualifying claim under federal law (see 28 U.S.C §1367). Further, in order to

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state a claim under California law, plaintiff must comply with the terms of the California Tort

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Claims Act, and then plead compliance. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub.

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Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts

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demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista

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Unified School Dist., 42 Cal.4th 201, 209 (2007).

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Finally, plaintiff is informed again that the court cannot refer to a prior pleading in order

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to make plaintiff’s second amended complaint complete. Local Rule 220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is because,

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as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay,

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375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in a second amended complaint, as

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in an 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 amended complaint is dismissed; and

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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 a second amended complaint in accordance with this order will result in a recommendation

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that this action be dismissed.

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Dated: November 20, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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