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Rosendo Robert Ramirez v. John Potter

November 17, 2011

ROSENDO ROBERT RAMIREZ, PLAINTIFF,
v.
JOHN POTTER, ET AL., DEFENDANTS.



ORDER

Plaintiff, a detainee at the Eloy Detention Center in Eloy, Arizona*fn1 , is proceeding pro se with what he purports to be a Bivens action (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)) over which this court has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1). Plaintiff has consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 4.

I. In Forma Pauperis Application

Plaintiff's in forma pauperis application is incomplete because he has not attached a certified copy of his inmate trust account statement for the six-month period immediately preceding the filing of the complaint in this action. See 28 U.S.C. § 1915(a)(2). Should plaintiff wish to proceed with this action, he must submit a certified copy of his inmate trust account statement for the relevant six-month period within thirty days from the date of this order.

II. Plaintiff's Complaint

Plaintiff names as defendants in this action U.S. Postmaster General John Potter, U.S. Postal Inspector Sara Harlan, Department of Homeland Security - Immigration & Customs Enforcement Officers Katrina Kane and Marc Vallezor, Chief Medical Officer at Eloy Detention Center Commander George, and Chief of Unit Management at Eloy Detention Center Gina Sween as defendants. In his difficult-to-decipher complaint plaintiff appears to allege as follows. He was an employee of the U.S. Postal Service, at some unidentified postal facility, where he was discriminated against, retaliated against and harassed on the basis of race, national origin, color, veteran status, disability, sex, religion, marital status and political affiliation. (Compl. at 6, 8 of 11.) He was suspended from his job on September 23, 2010 and fired on February 7, 2011, when the Postal Service contacted Department of Homeland Security - Immigration & Customs Enforcement officers and wrongfully provided false information regarding plaintiff to them resulting in plaintiff being taken into custody, presumably for deportation or exclusion from the United States. (Id. at 6.) This was done, in part, in retaliation against plaintiff for filing EEO and OSHA complaints. (Id. at 9.)

In taking plaintiff into custody, Department of Homeland Security - Immigration & Customs Enforcement officers severely injured him. (Id. at 7.) The defendants conspired to have plaintiff fired so that he could not post bail in his immigration case. (Id.) Plaintiff's injury has not been adequately treated since his detention at the Eloy facility. (Id. at 8.) Since his incarceration at the Eloy Detention Center plaintiff has received no treatment for other medical conditions from which he suffers, has been provided with an inadequate diet, has been denied shoes, mail, access to the library, an adequate grievance process and a copy of the rules governing that facility, along with a myriad of other alleged violation of his rights. (Id. at 8,10.)

III. Screening Requirement

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Here, the allegations in plaintiff's complaint are so vague and conclusory and undecipherable that the court is unable to determine whether the current action is frivolous or fails to state a claim for relief. The complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support his claims. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

If plaintiff chooses to file an amended complaint, plaintiff must allege specific facts demonstrating how the conditions complained of resulted in a deprivation of plaintiff's federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights.

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 ...


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