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) and plaintiff has consented to have
all matters in this action before a United States Magistrate
Judge. See 28 U.S.C. § 636(c).
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 has reviewed plaintiff's complaint and finds that
it fails to state a claim upon which relief can be granted
under federal law. Plaintiff's complaint must be
dismissed. The court will, however, grant leave to file an
seeks injunctive relief concerning mental health treatment.
Plaintiff's complaint concerns treatment he received
while committed to the California Department of State
Hospitals. But when plaintiff filed his complaint, he was
housed at North Kern State Prison, and is now housed at the
California Health Care Facility. If plaintiff seeks
injunctive relief in an amended complaint, he must explain
exactly what sort of relief he seeks and the basis for the
relief which must concern the treatment he is now receiving.
He must also identify a defendant, such as a primary care
physician, whom the court could order to provide the relief
extent plaintiff seeks damages in an amended complaint, he
must explicitly say so and 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).
appears plaintiff complains about the use of excessive force.
In order to adequately allege a claim for damages based upon
excessive force, plaintiff must allege facts showing the
amount of force used by a defendant was unnecessary and
resulted in a wanton infliction of pain. Hudson v.
McMillian, 503 U.S. 1, 5 (1992). Not every malevolent
touch by a prison guard gives rise to a federal cause of
action. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
But, the malicious and sadistic use of force to cause harm
generally violates contemporary standards of decency.
also suggests he was retaliated against for filing grievances
or other complaints while housed with the Department of State
Hospitals. Prison officials generally cannot retaliate
against inmates for exercising First Amendment rights.
Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985).
A First Amendment retaliation claim has five elements: 1) the
retaliated-against conduct is protected; 2) a defendant took
adverse action against the plaintiff; 3) there is a causal
connection between the protected conduct and the adverse
action; 4) the defendant's acts would chill future First
Amendment activities of a reasonable person; and 5) the
retaliatory action did not advance legitimate correctional
goals. Watison v. Carter, 668 F.3d 1108, 1114-15
(9th Cir. 2012).
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.
the court notes that plaintiff has several lawsuits pending
in this court. In his amended complaint, plaintiff shall not
include any claims upon which he is ...