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Hill v. Dang

United States District Court, E.D. California

May 10, 2018

CYMEYON HILL, Plaintiff,
v.
DANG, Defendant.

          ORDER

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a California civil committee proceeding in this action pro se, 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(21), pursuant to 28 U.S.C. § 636(b)(1).

         Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

         The federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally “frivolous or malicious, ” fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

         A claim 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.

         In 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, 51 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         The court has reviewed plaintiff's complaint and finds that it fails to state a claim upon which relief can be granted under federal law. For the most part, the allegations in the complaint are conclusory without sufficient factual support. Furthermore, plaintiff identifies some acts, e.g. taking pictures of plaintiff, which, by themselves, simply do not amount to a violation of federal law. For these reasons, plaintiff's complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

         If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). To do this, plaintiff must identify which federal right he believes has been violated and then point to specific facts, not merely conclusions, which indicate the right has been violated. For example, if plaintiff believes he has been subjected to harmful conditions of confinement in violation of the Fourteenth Amendment, [1] plaintiff must so state and then present facts showing the conditions to which he has been subjected, that a particular defendant is responsible for subjecting plaintiff to such conditions and that plaintiff sustained injury as a result of being subjected to the conditions.

         Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiffs amended complaint complete. Local Rule 15-220 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.

         In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiffs request to proceed in forma pauperis (ECF No. 2) is granted;
2. Plaintiffs complaint is dismissed; and
3. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled “Amended Complaint”; failure to file an amended ...

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