United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and seeking relief
pursuant to 42 U.S.C. § 1983. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1).
requests leave to proceed in forma pauperis. Since plaintiff
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a), his request will be granted.
Plaintiff is required to pay the statutory filing fee of
$350.00 for this action. 28 U.S.C. §§ 1914(a),
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.
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).
having conducted the required screening, the court finds that
plaintiff's complaint fails to state a claim upon which
relief can be granted. Plaintiff seeks an order directing the
California Board of Parole Hearings (BPH) to release
plaintiff on parole. This form of relief cannot be sought in
this action because when a state prisoner challenges the
legality of his custody and the relief he seeks is the
determination of his entitlement to an earlier or immediate
release, his sole federal remedy is a writ of habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
also appears to challenge the frequency with which his parole
hearings are being held. In his complaint, plaintiff asserts
his next parole hearing was to be held in December, 2016. The
court has not been notified as to the outcome of that
hearing. If plaintiff was denied parole, and if he believes
he has some basis for presenting a federal challenge to the
scheduling of his next parole hearing, he may do so in an
plaintiff elects to file an amended complaint, 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 alleged.
accordance with the above, IT IS HEREBY ORDERED that:
Plaintiff's request for leave to proceed in forma
pauperis (ECF No. 2) is granted.
Plaintiff is obligated to pay the statutory filing fee of
$350.00 for this action. All fees shall be collected and paid
in accordance with this court's order to the Director of
the California Department of Corrections and Rehabilitation
filed concurrently herewith.
Plaintiff's complaint is dismissed.
Plaintiff is granted thirty days from the date of service of
this order to file an amended complaint that complies with
the requirements of the Civil Rights Act, the Federal Rules
of Civil Procedure, and the Local Rules of Practice. The
amended complaint must bear the docket number assigned this
case and must be labeled “Amended Complaint.”
Failure to file an ...