United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
April 18, 2017, defendant removed from state court the
complaint filed by plaintiff, a state prisoner, proceeding
pro se. Defendant paid the filing fee.
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 when 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1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,
' in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.'” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). In order to survive dismissal for
failure to state a claim, a complaint must contain more than
“a formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. at 555. However, “[s]pecific
facts are not necessary; the statement [of facts] need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atlantic, 550 U.S. at 555, citations
and internal quotations marks omitted). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
district court must construe a pro se pleading
“liberally” to determine if it states a claim
and, prior to dismissal, tell a plaintiff of deficiencies in
his complaint and give plaintiff an opportunity to cure them.
See Lopez, 203 F.3d at 1130-31. While detailed
factual allegations are not required, “[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)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Plaintiff must set forth “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic
Corp., 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. The plausibility standard is not akin to a
“probability requirement, ” but it asks for more
than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.
Ashcroft, 556 U.S. at 678 (citations and quotation
marks omitted). Although legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations, and are not entitled to the assumption of truth.
Id. at 1950.
filed his claims on a state court complaint form. In his
intentional tort cause of action, plaintiff alleges that
defendant used excessive force, “lost his cool and
ability to reason, ” and that plaintiff suffered an
injury. (ECF No. 2 at 11.) In the exemplary damages
attachment, plaintiff states that “staff correction
officer acted maliciously and sadistically for the purpose of
causing [plaintiff] harm, ” but plaintiff again alleges
no facts demonstrating how defendant acted. (ECF No. 2 at
of excessive force against an inmate violates an inmate's
Eighth Amendment right to be free from cruel unusual
punishment. Graham v. Connor, 490 U.S. 386, 393-94
(1989). The use of force is constitutional if employed to
keep or restore order in the prison; it is unconstitutional
if wielded “maliciously or sadistically for the very
purpose of causing harm.” Whitley v. Albers,
475 U.S. 312, 320-21 (1986). “That is not to say that
every malevolent touch by a prison guard gives rise to a
federal cause of action. The Eighth Amendment's
prohibition of ‘cruel and unusual' punishments
necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of
force is not of a sort ‘repugnant to the conscience of
mankind.'” Hudson v. McMillan, 501 U.S. 1,
9-10 (1992). The Supreme Court has identified five factors to
consider in determining whether an official's use of
force was sadistic and malicious for the purpose of causing
harm: (1) extent of the injury; (2) need to use the force;
(3) relationship between the need to use the force and the
amount used; (4) the threat “reasonably
perceived” by the official; and (5) any efforts made to
temper the severity of the force. Id. at 7.
plaintiff does not provide any factual allegations as to when
this incident occurred, or how the use of force was employed.
Plaintiff may be able to allege facts demonstrating that
defendant used excessive force. But plaintiff must tell the
court what happened that he contends shows that defendant
used excessive force. In other words, plaintiff must allege
facts surrounding the use of force in order for the court to
determine whether he states a cognizable civil rights claim
by using the Hudson elements to evaluate whether the
facts alleged meet the required standards.
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. 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 about which he complains
resulted in a deprivation of plaintiff's constitutional
rights. Rizzo v. Goode, 423 U.S. 362, 371 (1976).
Also, the complaint must allege in specific terms how each
named defendant is involved. Id. 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. Id.; 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.
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 requirement exists 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.