United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
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.
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.
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. §
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.
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).
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.
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,  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
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.
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