United States District Court, E.D. California
CRAIG D. ALLEN, Plaintiff,
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO, et al., Defendants.
D. Allen, Plaintiff, Pro Se.
GREGORY G. HOLLOWS, Magistrate Judge.
is proceeding in this action pro se and in forma pauperis
pursuant to 28 U.S.C. § 1915. This proceeding was referred to
this court by Local Rule 302(21), pursuant to 28 U.S.C. §
order of March 14, 2016, plaintiff was informed of the
deficiencies in his complaint and directed to file an amended
complaint. After one extension of time, plaintiff filed an
amended complaint on May 12, 2016 which has now been
determination that plaintiff may proceed in forma pauperis
does not complete the required inquiry. Pursuant to 28 U.S.C.
§ 1915(e)(2), the court is directed to dismiss the case at
any time if it determines the allegation of poverty is
untrue, or if the action is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against an immune defendant.
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.
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
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965
(2007). "The pleading must contain something more...
than... a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action."
Id., quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure 1216, pp. 235-235 (3d ed. 2004).
"[A] complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96
(1972); Balistreri v. Pacifica Police Dep't.,
901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no
amendment can cure the defects of a complaint, a pro se
plaintiff proceeding in forma pauperis is entitled to notice
and an opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987);
Franklin, 745 F.2d at 1230.
amended complaint has properly eliminated any request to
overturn plaintiff's conviction which the undersigned
previously informed plaintiff was not an appropriate request
in the instant action.
amended complaint does allege that plaintiff's rights
under the Americans with Disabilities Act ("ADA")
were violated on February 13, 2015,  by the work release
division of the Sacramento Sheriff's Department.
Plaintiff has stated a colorable claim for violation of the
ADA on the present record.
states that he has been unable to research his Eighth
Amendment Excessive Fines claim and requests to amend his
pleading at a later time. Therefore, plaintiff will be
provided further time to file a second amended complaint
which contains both the ADA and Eighth Amendment claims and
complies with all of the directives set forth in this
court's March 14, 2016 order. Plaintiff is warned that if
he does not file a second amended complaint, his action will
proceed on the ADA claim only and he may not be able to amend
at a later time.
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 Forsyth v. Humana, Inc.,
114 F.3d 1467, 1474 (9th Cir.1997), overruled in part on
other grounds, Lacey v. Maricopa County, 693 F.3d 896,
928 (9th Cir. 2012) (en banc). Once plaintiff files an
amended complaint, the original pleading no longer serves an
operative 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.
cause appearing, IT IS ORDERED that: Plaintiff is granted
leave to file a second amended complaint within twenty-eight
(28) days from the date of service of this Order. The second
amended complaint must comply with the requirements of the
Federal Rules of Civil Procedure, and the Local Rules of
Practice; the second amended complaint must bear the docket
number assigned this case and must be labeled "Second
Amended Complaint;" failure ...