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King v. Haviland

June 4, 2010

MAILLIARD L. KING, PLAINTIFF,
v.
J. W. HAVILAND, DEFENDANT.



ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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). Plaintiff's complaint is almost 500 pages long with exhibits. He names approximately 50 defendants. Most of the information in the complaint is irrelevant to the issue of whether plaintiff states a claim upon which this court can grant relief. Simply put, the complaint is not short and plain as required by Federal Rule of Civil Procedure 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claims plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

Because plaintiff's complaint does not satisfy Rule 8, it will be dismissed. The court will however grant plaintiff leave to file an amended complaint. In his amended complaint, plaintiff must:

1. State the elements of his claims plainly and succinctly. Id. Plaintiff shall state his claims and the facts in support of those claims only one time. Basically, the complaint should be limited to facts that support a claim (including identification of the person who violated plaintiff's rights), the identification of the claim itself (e.g., violation of the Eighth Amendment) and a request for relief.

2. Limit the text to only that which demonstrates how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

3. Omit vague and conclusory allegations of official participation in civil rights violations. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

4. Not include any frivolous claims (claims with no valid legal basis) and not cite any irrelevant statutes or case law.

5. Limit exhibits to those which are necessary to clarify points raised in the amended complaint. As a general rule, it is not necessary or appropriate to attach exhibits to a complaint.

6. Adhere to the Federal Rules of Civil Procedure and the Local Rules of this court.

If plaintiff chooses to amend the complaint, plaintiff also must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

If plaintiff fails to comply with any of the foregoing with respect to his amended complaint, this ...


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