United States District Court, E.D. California
KENDALL J. NEWMAN 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).
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). 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
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's 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 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1989), superseded by statute as stated in Lopez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).
only named defendant is law librarian Gray. Plaintiff alleges
that on April 7, 2017, plaintiff went to the law library.
Plaintiff alleges that defendant Gray refused to allow
plaintiff to enter the law library because plaintiff had
filed a lawsuit against one of defendant Gray's friends
at the prison hospital. Plaintiff alleges that defendant Gray
also stated that “we … will pay you back, when
this is over with the federal court, the CDC is going to put
you in the hole and then transfer you out of here and put you
with your enemies … for they could kill you.”
Plaintiff seeks injunctive relief only. In particular,
plaintiff seeks an order preventing the medical staff,
defendant Gray and the CDCR from transferring him and putting
him in lock-up if he has done nothing wrong. Plaintiff also
requests that the court order medical staff, defendant Gray
and CDCR to stop putting labels on him, such as stating that
he is associated with the Mexican Mafia and a snitch.
Plaintiff alleges that “they” told a prisoner
that plaintiff told on him, which put plaintiff's life in
has stated a potentially colorable retaliation claim against
defendant Gray. However, it does not appear that plaintiff
has named the proper defendants for the injunctive relief
sought. The Ninth Circuit has recognized that the proper
state defendant in a § 1983 action seeking prospective
injunctive relief is the one who “would be responsible
for ensuring that injunctive relief was carried out, even if
he was not personally involved in the decision giving rise to
[the plaintiff's] claims.” Pouncil v.
Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (citing
Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011) (the prison warden was the proper defendant for a claim
of injunctive relief, notwithstanding his lack of personal
involvement in the challenged conduct, because he would be
responsible for ensuring that the injunctive relief was
not appear that defendant Gray, as the law librarian, has the
authority to respond to court orders regarding
plaintiff's housing status. In addition, the court cannot
issue orders regarding injunctive relief to non-defendants,
including medical staff and CDCR officials. For these
reasons, plaintiff's complaint is dismissed with leave to
also alleges that he has been wrongly labeled as a gang
member and a snitch, and seeks an order directing prison
officials to stop making these improper labels. However,
plaintiff does not allege that defendant Gray improperly
labeled him. Because plaintiff has not linked defendant Gray
to these claims, the court cannot direct defendant Gray to
cease making these improper labels.
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.