United States District Court, E.D. California
CHARLES R. COOKS, Plaintiff,
CALIFORNIA STATE PRISON, SOLANO, et al., Defendants.
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).
court finds the allegations in plaintiff's complaint so
vague and conclusory that it 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
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).
While it is not entirely clear, it appears plaintiff asserts
he has been denied access to courts. Plaintiff is informed
that prisoners have a Constitutional right of access to
courts. Bounds v. Smith, 430 U.S. 817, 821 (1977).
Generally speaking, there are two types of denial of access
to courts claims: 1) those involving the right to assistance
through, among other things, provision of legal materials or
legal advice; and 2) those involving the literal denial of
access to the courts, e.g. not permitting an inmate to
communicate with a court. Silva v. Di Vittorio, 658
F.3d 1090, 1102 (9th Cir. 2011) overruled on other
grounds in Coleman v. Tollefson, 135 S.Ct. 1759, 1763-64
(2015). With respect to an inmate's challenge to his
conviction or sentence and with respect to actions under 42
U.S.C. § 1983 for violations of civil rights, some
affirmative assistance is required. Lewis v. Casey,
518 U.S. 343, 354 (1996). With respect to other civil
actions, inmates have the more minimal right to not literally
be denied access through the erection of barriers to claims
that have a reasonable basis in law or fact. Silva,
658 F.3d at 1102-03. In either case, the right to access is
“ancillary to the underlying claim, without which a
plaintiff cannot have suffered injury by being shut out of
court.” Christopher v. Harbury, 536 U.S. 403,
plaintiff's amended 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). 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).
plaintiffs complaint is too long and violates Fed.R.Civ.P.
8(a)(2) which requires that pleadings contain a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Plaintiffs amended complaint shall
be limited to 20 pages and shall not be repetitive, contain
immaterial cites to law, or irrelevant assertions of fact.
plaintiff is informed that the court cannot refer to a prior
pleading in order to make plaintiffs 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:
Plaintiffs request for leave to proceed in forma pauperis
(ECF No. 2 & 6) 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 ...