United States District Court, E.D. California
CONNOR A. DAVIS, Plaintiff,
CDCR, et al., Defendants.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983. This
proceeding was referred to this court pursuant to 28 U.S.C.
§ 636(b)(1) and Local Rule 302. On February 22, 2017,
the undersigned recommended that this action be dismissed
based on plaintiff's failure to pay the filing fee or
submit a completed application to proceed in forma pauperis.
Plaintiff was granted an extension of time in which to
provide such document, and on April 25, 2017, plaintiff
submitted the motion to proceed in forma pauperis. The
findings and recommendations are vacated.
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
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).
second amended complaint is now before the court. (ECF No.
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. Rex Hosp. Trustees, 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).
court finds the allegations in plaintiff's second amended
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
amended 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 second
amended complaint must be dismissed. The court will, however,
grant leave to file a third amended complaint.
plaintiff chooses to file an amended pleading, any amended
complaint must show the federal court has jurisdiction, the
action is brought in the right place, and plaintiff is
entitled to relief if plaintiff's allegations are true.
It must contain a request for particular relief. Plaintiff
must identify as a defendant only persons who personally
participated in a substantial way in depriving plaintiff of a
federal constitutional right. Johnson v. Duffy, 588
F.2d 740, 743 (9th Cir. 1978) (a person subjects another to
the deprivation of a constitutional right if he does an act,
participates in another's act or omits to perform an act
he is legally required to do that causes the alleged
federal rules contemplate brevity. See Galbraith v.
County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir.
2002) (noting that “nearly all of the circuits have now
disapproved any heightened pleading standard in cases other
than those governed by Rule 9(b)”); Fed.R.Civ.P. 84;
cf. Rule 9(b) (setting forth rare exceptions to simplified
pleading). Plaintiff's claims must be set forth in short
and plain terms, simply, concisely and directly. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)
(“Rule 8(a) is the starting point of a simplified
pleading system, which was adopted to focus litigation on the
merits of a claim.”); Fed.R.Civ.P. 8. Plaintiff must
not include any preambles, introductions, argument, speeches,
explanations, stories, griping, vouching, evidence, attempts
to negate possible defenses, summaries, and the like.
McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir.
1996) (affirming dismissal of § 1983 complaint for
violation of Rule 8 after warning); see Crawford-El v.
Britton, 523 U.S. 574, 597 (1998) (reiterating that
“firm application of the Federal Rules of Civil
Procedure is fully warranted” in prisoner cases). The
court (and defendant) should be able to read and understand
plaintiff's pleading within minutes. McHenry, 84
F.3d at 1179-80. A long, rambling pleading including many
defendants with unexplained, tenuous or implausible
connection to the alleged constitutional injury, or joining a
series of unrelated claims against many defendants, very
likely will result in delaying the review required by 28
U.S.C. § 1915 and an order dismissing plaintiff's
action pursuant to Fed.R.Civ.P. 41 for violation of these
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 ...