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DeRossett v. Dillion

April 2, 2010

LARRY JAMES DEROSSETT, JR., PLAINTIFF,
v.
ELI DILLION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND WITHIN THIRTY DAYS

(Doc. 7)

Screening Order

Plaintiff Larry James DeRossett, Jr., is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, as well as state claims pursuant to California tort law and the California Constitution. Plaintiff filed his original complaint on March 2, 2010, and his first amended complaint on March 30, 2010. This matter has been referred to the magistrate judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.

I. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Twombly, 550 U.S. at 555.

Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, Plaintiff must set forth the legal and factual basis for his claim.

II. Factual Summary

According to the First Amended Complaint, on July 30, 2010,*fn1 in Jamestown, California, Plaintiff was tazed and then shot three times in his legs and buttocks. Plaintiff contends the California Highway Patrol Officers, Defendants Eli Dillion, who fired the gun, and Scott Taylor, who fired the Tazer, violated Plaintiff's rights under the Fourth and Fourteenth Amendments to the United States Constitution as well as violating California law and the California Constitution. Plaintiff seeks monetary damages.

Although Plaintiff alleged additional facts in his original complaint, he has omitted these from his First Amended Complaint. Plaintiff is reminded that each amended complaint supercedes every prior complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), aff'd, 525 U.S. 299 (1999); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 15-220. "All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567; accord Forsyth, 114 F.3d at 1474. The Court cannot look to prior complaints, which have been dismissed, for facts or allegations omitted from the current complaint. Each amended complaint must allege all claims and set forth all facts that Plaintiff wishes to include in the case.

III. Plaintiff's Claims

A. Fourth and Fourteenth Amendment

In claim 3, Plaintiff alleges that Defendants Dillion and Taylor used excessive and unnecessary use of force which, depending on the facts underlying the shooting incident, appear to state claims pursuant to the Fourth Amendment of the U.S. Constitution, although Plaintiff does not explicitly refer to the Fourth Amendment in these claims. The provisions of the Fourth Amendment were extended to the states by the Fourteenth ...


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