United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a California prisoner proceeding pro se. On October 12,
2016, defendants, employees of the California Department of
Corrections and Rehabilitation (CDCR), removed this 42 U.S.C.
§ 1983 action from the Superior Court of Sacramento
County pursuant to 28 U.S.C. § 1441(a). This proceeding
was referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
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).
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. 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. 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.
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, 556 U.S. 662, 678 (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, 556 U.S. at 678.
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).
appears to complain about verbal sexual harassment, but after
conducting the required screening, the court finds that
plaintiff's complaint fails to state a claim upon which
relief can be granted. Although the Federal Rules of Civil
Procedure 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. Plaintiff's complaint must be dismissed. The
court will, however, grant leave to file an amended
plaintiff chooses to amend the complaint, he should consider
1. In order to state a claim upon which relief can be
granted, 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).
2. 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). 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).
3. The Eighth Amendment prohibits “cruel and unusual
punishment.” Generally speaking “only the
unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment.” Whitley v. Albers,
475 U.S. 312, 319 (1986). Verbal harassment generally does
not implicate the Eighth Amendment. See Keenan v.
Hall, 83 F.3d 1083, 1092 (9th Cir. 1996).
4. Prison officials generally cannot retaliate against
inmates for exercising First Amendment rights. Rizzo v.
Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Because a
prisoner's First Amendment rights are necessarily
curtailed, however, a successful retaliation claim requires a
finding that “the prison authorities' retaliatory
action did not advance legitimate goals of the correctional
institution or was not tailored narrowly enough to achieve
such goals.” Id. at 532. The plaintiff bears
the burden of pleading and proving the absence of legitimate
correctional goals for the conduct of which he complains.
Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
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
accordance with the above, IT IS ...