United States District Court, E.D. California
CARLTON V. MOSLEY
JEFFREY BEARD, et al., Defendants. v.
M. KELLISON JUDGE
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 (Doc. 1). Also before the
court is plaintiff’s motion for the appointment of
counsel (Doc. 4).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a “. . . short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This means that claims
must be stated simply, concisely, and directly. See
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)
(referring to Fed.R.Civ.P. 8(e)(1)). These rules are
satisfied if the complaint gives the defendant fair notice of
the plaintiff’s claim and the grounds upon which it
rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th
Cir. 1996). Because plaintiff must allege with at least some
degree of particularity overt acts by specific defendants
which support the claims, vague and conclusory allegations
fail to satisfy this standard. Additionally, it is impossible
for the court to conduct the screening required by law when
the allegations are vague and conclusory.
discussed above, Rule 8 requires a complaint contain a short
and plain statement of the claim. Plaintiff’s complaint
consists of over 100 pages of hand-written allegations and
attached documents which purportedly support the factual
allegations against the defendants. This pleading method does
not satisfy the requirement of Rule 8(a) that claims must be
stated simply, concisely, and directly. To the contrary,
plaintiff’s complaint would require the court to comb
through numerous pages of documents in order to determine
whether plaintiff has stated any claims upon which relief can
be granted. The court is unwilling to do this in part due to
limited judicial resources but also because it is for
plaintiff - not the court - to formulate his claims in a way
that satisfies the rules. The complaint will be dismissed
with leave to amend.
seeks the appointment of counsel. The United States Supreme
Court has ruled that district courts lack authority to
require counsel to represent indigent prisoners in §
1983 cases. See Mallard v. United States Dist.
Court, 490 U.S. 296, 298 (1989). In certain exceptional
circumstances, the court may request the voluntary assistance
of counsel pursuant to 28 U.S.C. § 1915(e)(1). See
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th
Cir. 1990). A finding of “exceptional
circumstances” requires an evaluation of both the
likelihood of success on the merits and the ability of the
plaintiff to articulate his claims on his own in light of the
complexity of the legal issues involved. See
Terrell, 935 F.2d at 1017. Neither factor is dispositive
and both must be viewed together before reaching a decision.
present case, the court does not at this time find the
required exceptional circumstances. Specifically, until
plaintiff submits a complaint which complies with Rule 8, the
court is unable to evaluate the factors discussed above.
is informed that, as a general rule, an amended complaint
supersedes the original complaint. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,
following dismissal with leave to amend, all claims alleged
in the original complaint which are not alleged in the
amended complaint are waived. See King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987). Therefore, the court
cannot refer to the prior pleading in order to make
plaintiff's amended complaint complete. See
Local Rule 220. An amended complaint must be complete in
itself without reference to any prior pleading. See
amended complaint, plaintiff must demonstrate 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). The amended
complaint must allege in specific terms how each named
defendant is involved, and must set forth some affirmative
link or connection between each defendant’s actions and
the claimed deprivation. See May v. Enomoto, 633
F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978).
plaintiff is warned that failure to file an amended complaint
within the time provided in this order may be grounds for
dismissal of this action. See Ferdik, 963 F.2d at
1260-61; see also Local Rule 110. Plaintiff is also
warned that a complaint which fails to comply with Rule 8
may, in the court’s discretion, be dismissed with
prejudice pursuant to Rule 41(b). See Nevijel v. North
Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
IT IS HEREBY ORDERED that:
Plaintiffs complaint is dismissed with leave to amend;
Plaintiff shall file an amended complaint within 30 days of