Easley v. CDC - California Department of Corrections et al

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 4/12/2018 GRANTING 2 Motion to Proceed IFP. Plaintiff's complaint is DISMISSED, but with leave to amend. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint in accordance with this order, or (b) a notice of voluntary dismissal of the action without prejudice. (Zignago, K.)

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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 STEVEN EASLEY, 12 Plaintiff, 13 14 15 No. 2:18-cv-00668-KJM-KJN PS v. ORDER CDC – CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants. 16 17 Plaintiff Steven Easley, who is proceeding without counsel in this action, has requested 18 19 leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s 20 application in support of his request to proceed in forma pauperis makes the showing required by 21 28 U.S.C. § 1915. Accordingly, the court grants plaintiff’s request to proceed in forma pauperis. The determination that a plaintiff may proceed in forma pauperis does not complete the 22 23 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 24 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 26 an immune defendant. 27 28 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. 6 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 7 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 8 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 16 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. 17 Rhodes, 416 U.S. 232, 236 (1974). 18 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 19 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear 20 that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma 21 pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll 22 v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th 23 Cir. 1984). 24 Here, plaintiff’s complaint is rambling and difficult to follow. The complaint names the 25 Sacramento Sheriff’s Department, the California Department of Corrections, and the 26 Neighborhood Crime Watch, as defendants. (ECF No. 1 at 6–7.) It invokes federal question 27 jurisdiction for purported violations of federal guidelines, conspiracy to commit murder, and 28 terrorism to the state. (Id. at 10.) 2 1 The complaint appears to detail plaintiff’s November 4, 2011 arrest, for an alleged 2 probation violation, followed by his brief incarceration, during which time plaintiff was allegedly 3 physically injured by officers employed by the Sacramento County Sheriff’s Department. (Id. at 4 12–16.) Then, the complaint lists a number of conclusory and confusing allegations that some 5 unnamed conspirators have variously tampered with plaintiff’s home computer; stolen and hidden 6 items from him; urinated in his milk; threatened his daughter in Kansas City, Missouri; attempted 7 murder and assault; among other unclear allegations. 2 (Id. at 16–20.) 8 9 The complaint does not properly state a claim under any federal law. Indeed, to the extent that plaintiff alleges criminal conduct (e.g. conspiracy to attempt murder), plaintiff has no 10 authority to prosecute alleged criminal conduct in federal court, as a private individual. Criminal 11 prosecutions must be initiated by the proper authorities, such as the Office of the United States 12 Attorneys. For these reasons, the complaint is subject to dismissal. 13 At the same time, construed liberally, it appears that plaintiff may be attempting to state 14 claims under 42 U.S.C. § 1983 for alleged violations of his constitutional rights. In light of 15 plaintiff’s pro se status, and because it is at least conceivable that plaintiff could allege additional 16 facts to potentially state a claim under § 1983, the court finds it appropriate to grant plaintiff an 17 opportunity to amend the complaint. If plaintiff elects to file an amended complaint, it shall be captioned “First Amended 18 19 Complaint,” shall be typed or written in legible handwriting, shall address the deficiencies 20 outlined in this order, and shall be filed within 28 days of this order. 21 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 22 to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended 23 complaint be complete in itself without reference to any prior pleading. As a general rule, an 24 2 25 26 27 28 At one point, plaintiff references illicit drug use, further confusing matters: Since Nov. 4th 2011 I had to use Meth in order to learn why the world as I once knew it had not only turn[ed] its back on me, but everyone that I knew, or know, even those I didn’t know were allowed to steal, lie and threaten me. . . (ECF No. 1 at 22.) 3 1 amended complaint supersedes the original complaint, and once the first amended complaint is 2 filed, the original complaint no longer serves any function in the case. 3 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 4 plaintiff determines that he is unable to amend his complaint in compliance with the court’s order 5 at this juncture, he may alternatively file a notice of voluntary dismissal of his claims without 6 prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 9 2. Plaintiff’s complaint is dismissed, but with leave to amend. 10 3. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint in 11 accordance with this order, or (b) a notice of voluntary dismissal of the action without 12 prejudice. 13 4. Failure to file either a first amended complaint or a notice of voluntary dismissal by 14 the required deadline may result in the imposition of sanctions, including potential 15 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 16 41(b). 17 18 IT IS SO ORDERED. Dated: April 12, 2018 19 20 14/ps.18-668.easley.IFP.dislta 21 22 23 24 25 26 27 28 4

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