(PC) Lopez v. Spearman

Filing 7

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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OMAR LOPEZ, 12 No. 2:19-CV-1755-DMC-P Plaintiff, 13 v. 14 M. SPEARMAN, 15 ORDER Defendant, 16 17 18 19 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 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 8 I. PLAINTIFF’S ALLEGATIONS Plaintiff names M. Spearman as defendant. Plaintiff’s complaint makes a Due 9 Process claim and an Equal Protection claim under the 14th Amendment. However, plaintiff’s 10 factual allegations are vague. From his complaint, plaintiff appears to allege that Spearman, a 11 warden at High Desert State Prison in Susanville, CA, deprived him of his right to a hearing 12 under Proposition 57 and the Constitution. Plaintiff does not explain the nature of the subject 13 hearing, but does mention that under recent amendments to the Constitution, inmates such as 14 himself are eligible for parole after their base prison terms have passed. 15 16 17 II. DISCUSSION Plaintiff’s complaint fails to state sufficient facts to support a cognizable claim. 18 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link 19 between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t 20 of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person 21 ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he 22 does an affirmative act, participates in another's affirmative acts, or omits to perform an act which 23 he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. 24 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations concerning the 25 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of 26 Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to 27 each individual defendant’s causal role in the alleged constitutional deprivation. See Leer v. 28 Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 2 1 Here, Plaintiff’s complaint is comprised entirely of vague legal conclusions. 2 Plaintiff claims that Spearman is “holding his own regulations” and violating plaintiff’s right to a 3 hearing under “Prop 57” and the Constitution. ECF No. 1 at 4. However, there is no reference to 4 any particular hearing, nor the reason for which plaintiff requested a hearing. The factual 5 circumstances which brought on this complaint are not mentioned. Plaintiff does not allege any 6 facts which underlie his claim and instead simply states that new laws may make him eligible for 7 parole. ECF No. 1 at 5. Plaintiff has failed to set forth any facts which may establish a causal link 8 between the defendant’s actions and the alleged deprivation of rights. Neither vague and 9 conclusory allegations, nor simple recitations of the law, shall be sufficient to establish a claim 10 under the 14th Amendment. Plaintiff will be provided an opportunity to amend the complaint to 11 set forth specific facts demonstrating what the defendant did and how that action or inaction violated 12 plaintiff’s constitutional rights. 13 14 15 III. CONCLUSION Because it is possible that the deficiencies identified in this order may be cured by 16 amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire 17 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 18 informed that, as a general rule, an amended complaint supersedes the original complaint. See 19 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 20 amend, all claims alleged in the original complaint which are not alleged in the amended 21 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 22 plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make 23 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 24 complete in itself without reference to any prior pleading. See id. 25 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 26 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See 27 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 28 each named defendant is involved, and must set forth some affirmative link or connection 3 1 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 2 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 Finally, plaintiff is warned that failure to file an amended complaint within the 4 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 5 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 6 with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 7 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s complaint is dismissed with leave to amend; and 10 2. Plaintiff shall file a first amended complaint within 30 days of the date of 11 service of this order. 12 13 Dated: October 4, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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