(PC) Lopez v. Spearman
Filing
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ORDER signed by Magistrate Judge Dennis M. Cota on 10/4/2019 DISMISSING 1 Complaint with leave to amend within 30 days of the date of service of this order. (Henshaw, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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OMAR LOPEZ,
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No. 2:19-CV-1755-DMC-P
Plaintiff,
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v.
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M. SPEARMAN,
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ORDER
Defendant,
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (ECF No. 1).
The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege
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with at least some degree of particularity overt acts by specific defendants which support the
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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
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impossible for the court to conduct the screening required by law when the allegations are vague
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and conclusory.
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I. PLAINTIFF’S ALLEGATIONS
Plaintiff names M. Spearman as defendant. Plaintiff’s complaint makes a Due
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Process claim and an Equal Protection claim under the 14th Amendment. However, plaintiff’s
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factual allegations are vague. From his complaint, plaintiff appears to allege that Spearman, a
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warden at High Desert State Prison in Susanville, CA, deprived him of his right to a hearing
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under Proposition 57 and the Constitution. Plaintiff does not explain the nature of the subject
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hearing, but does mention that under recent amendments to the Constitution, inmates such as
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himself are eligible for parole after their base prison terms have passed.
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II. DISCUSSION
Plaintiff’s complaint fails to state sufficient facts to support a cognizable claim.
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To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link
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between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t
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of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person
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‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he
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does an affirmative act, participates in another's affirmative acts, or omits to perform an act which
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he is legally required to do that causes the deprivation of which complaint is made.” Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the
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involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of
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Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to
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each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v.
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Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
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Here, Plaintiff’s complaint is comprised entirely of vague legal conclusions.
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Plaintiff claims that Spearman is “holding his own regulations” and violating plaintiff’s right to a
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hearing under “Prop 57” and the Constitution. ECF No. 1 at 4. However, there is no reference to
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any particular hearing, nor the reason for which plaintiff requested a hearing. The factual
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circumstances which brought on this complaint are not mentioned. Plaintiff does not allege any
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facts which underlie his claim and instead simply states that new laws may make him eligible for
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parole. ECF No. 1 at 5. Plaintiff has failed to set forth any facts which may establish a causal link
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between the defendant’s actions and the alleged deprivation of rights. Neither vague and
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conclusory allegations, nor simple recitations of the law, shall be sufficient to establish a claim
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under the 14th Amendment. Plaintiff will be provided an opportunity to amend the complaint to
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set forth specific facts demonstrating what the defendant did and how that action or inaction violated
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plaintiff’s constitutional rights.
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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by
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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire
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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is
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informed that, as a general rule, an amended complaint supersedes the original complaint. See
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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to
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amend, all claims alleged in the original complaint which are not alleged in the amended
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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if
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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make
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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be
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complete in itself without reference to any prior pleading. See id.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
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each named defendant is involved, and must set forth some affirmative link or connection
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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Finally, plaintiff is warned that failure to file an amended complaint within the
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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at
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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply
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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).
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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed with leave to amend; and
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Plaintiff shall file a first amended complaint within 30 days of the date of
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service of this order.
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Dated: October 4, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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