United States District Court, E.D. California
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983 and has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1).
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF No. 7. Accordingly, the
request to proceed in forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
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.
complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if
it appears beyond doubt that plaintiff can prove no set of
facts in support of the claim or claims that would entitle
him to relief. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log
Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
In reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738,
740 (1976), construe the pleading in the light most favorable
to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
plaintiff appears to be complaining of events that took place
at High Desert State Prison (“HDSP”), where he
was previously housed,  the 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. See ECF No. 1
at 3. 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. Cmty. 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 an amended complaint.
plaintiff chooses to amend the 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).
Also, the complaint must allege in specific terms how each
named defendant is involved. 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); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.
1978). Furthermore, vague and conclusory allegations of
official participation in civil rights violations are not
sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,
268 (9th Cir. 1982).
extent plaintiff seeks to bring an Eighth Amendment excessive
use of force claim, plaintiff is advised that in order to
succeed on that claim, he must allege and establish that
defendants unnecessarily and wantonly inflicted pain. See
Whitley v. Albers, 475 U.S. 312, 320 (1986). Plaintiff
must allege facts that explain how each named defendant was
involved, the type of force that was allegedly used, and show
that each defendant intended to cause plaintiff harm and was
aware that plaintiff was in pain or discomfort as a result of
his or her actions.
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
plaintiff is cautioned that he must exhaust all of his
administrative remedies prior to bringing a federal civil
rights action. If plaintiff chooses to file an amended
complaint, he should include only those claims for which he
has filed administrative grievances.
accordance with the above, IT IS HEREBY ORDERED that:
Plaintiffs request for leave to proceed in forma pauperis