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). I.
Screening The 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. § 1915A(b)(1), (2).
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 has reviewed plaintiff's complaint and finds that
it fails to state a claim upon which relief can be granted as
there is no discernable violation of federal law alleged. It
appears to the court that the plaintiff may have received a
check from the Hardin Insurance Company relating to Clark
v. California, 3:96-cv-1486 CRB, a federal case in the
Northern District of California, and that the plaintiff
wanted the check to go to his mother. If the situation is as
the court believes, there is no violation of federal law.
these reasons, plaintiff's complaint will be dismissed.
The court will provide plaintiff one opportunity to amend in
order to state a claim upon which relief can be granted. If
plaintiff chooses to file an amended complaint, plaintiff
must demonstrate how the conditions complained of have
resulted in a deprivation of plaintiff's federal rights.
See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).
Also, in his amended complaint, plaintiff 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).
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.
Plain Language Summary for Pro Se Litigant
you are acting as your own attorney in this case, the court
wants to make sure that you understand this order. The
following information is meant to explain this order in plain
English and is not intended as legal advice.
court has screened your complaint and has found that it does
not state a claim upon which you can proceed. The court
believes that your complaint alleges that a check was sent to
you instead of to your mother. If this is, in fact, what
happened and what you are suing about, this is not a federal
constitutional violation. Because the court is not entirely
sure that it understands your complaint, the court is
allowing you another opportunity to explain what happened, in
plain English, and explain why you think what happened
violated federal law. You will have thirty days from the date
you receive this order to file an amended complaint, which
must be labeled “Amended Complaint, ” and include
the case number 2:17-cv-1227 JAM CKD.
accordance with the above, IT IS HEREBY ORDERED that:
Plaintiffs request for leave to proceed in forma pauperis
(ECF No. 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 ...