United States District Court, E.D. California
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se and in forma pauperis.
Plaintiff has filed a second amended complaint.
federal in forma pauperis statute authorizes federal courts
to dismiss a case if the action is legally “frivolous
or malicious, ” fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
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.
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“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 alleged.” Iqbal, 129 S.Ct. at 1949.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 127 S.Ct.
2197, 2200 (2007), and construe the complaint in the light
most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
court finds the allegations in plaintiff’s complaint so
vague and conclusory that it is unable to determine whether
the current action is frivolous or fails to state a claim for
relief. The court has determined that 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
and state 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 plaintiff’s claim. 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 a second amended
plaintiff chooses to amend the complaint, plaintiff must set
forth the jurisdictional grounds upon which the court’s
jurisdiction depends. Federal Rule of Civil Procedure 8(a).
Further, plaintiff must demonstrate how the conduct
complained of has resulted in a deprivation of
plaintiff’s federal rights. See Ellis v.
Cassidy, 625 F.2d 227 (9th Cir. 1980).
second amended complaint cures none of the deficiencies found
in the original and first amended complaints. To guide
plaintiff in filing a third amended complaint, the court
again advises plaintiff of the following.
second amended complaint sets forth allegations regarding
incidents involving officers of the Stockton Police
Department. Some of the incidents involve plaintiff’s
children. Plaintiff was previously advised that she may not
proceed on her childrens’ claims in propria persona.
Civil Rights Act under which this action was filed provides
as follows: Every person who, under color of [state law] . .
. subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution . . .
shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress. 42
U.S.C. § 1983. The statute requires that there be an
actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by plaintiff. See Monell v. Department of Social
Servs., 436 U.S. 658 (1978); Rizzo v. Goode,
423 U.S. 362 (1976). “A person ‘subjects’
another to the deprivation of a constitutional right, within
the meaning of § 1983, if he does an affirmative act,
participates in another's affirmative acts or omits to
perform an act which he is legally required to do that causes
the deprivation of which complaint is made.”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
supervisory personnel are generally not liable under §
1983 for the actions of their employees under a theory of
respondeat superior and, therefore, when a named defendant
holds a supervisorial position, the causal link between him
and the claimed constitutional violation must be specifically
alleged. See Fayle v. Stapley, 607 F.2d 858, 862
(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438,
441 (9th Cir. 1978), cert. denied, 442 U.S. 941
(1979). Vague and conclusory allegations concerning the
involvement of official personnel in civil rights violations
are not sufficient. See Ivey v. Board of Regents,
673 F.2d 266, 268 (9th Cir. 1982).
is advised that in any amended complaint, she must set forth
separate causes of action and should not plead in one
complaint incidents that are unrelated. In addition, if
plaintiff intends to pursue claims against a municipality,
plaintiff must set forth facts alleging that local government
officials have intentionally violated plaintiffs
constitutional rights, the violation was part of policy or
custom and was not an isolated incident, and that there is a
link between the specific policy or custom to the plaintiffs
injury. See Monell v. Department of Social Servs.,
436 U.S. 658, 690-92 (1978).
addition, plaintiff is informed that the court cannot refer
to a prior pleading in order to make plaintiffs amended
complaint complete. Local Rule 15-220 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. ...