United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. He seeks injunctive
relief. 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).
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, 551 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).
plaintiff filed his complaint, he was housed at Mule Creek
State Prison in protective custody. Plaintiff alleges he was
housed in protective custody because he had been identified
as a “rapist.” Plaintiff indicated that the
California Department of Corrections and Rehabilitation
(CDCR) was implementing a plan to move certain protective
custody inmates, such as plaintiff, to prisons with
“yards that are rich in ‘Rehabilitative'
programs called fifty-fifty yards.” While it is not
clear, the court assumes that in such yards inmates
previously identified as protective custody inmates would be
housed with non-protective custody inmates. Essentially,
plaintiff sought an order enjoining his transfer to a
facility where he would not be housed in protective custody.
are two problems with plaintiff's claims. First, his
assertions as to why he will be in danger at a
“fifty-fifty” yard are too general. In his
complaint, plaintiff does not point to specific facts which
suggest that if he is transferred to such a yard he would be
subjected to cruel and unusual punishment in violation of the
Eighth Amendment by being exposed to a substantial risk of
serious harm. See Farmer v. Brennan, 511 U.S. 825,
second problem is that the court generally does not have the
authority to order CDCR where to house prisoners. See
Meachum v. Fano, 427 U.S. 215, 224 (1976). Put another
way, while the court can order that a plaintiff's housing
conform to the requirements of the Eighth Amendment, the
court generally cannot tell CDCR at which specific prison an
inmate must be housed.
these reasons, plaintiff's complaint must be dismissed.
The court will, however, grant leave to file an amended
complaint. The court notes that it appears from subsequent
filings that plaintiff has been transferred away from Mule
Creek. ECF No. 10. In an amended complaint, plaintiff might
state a claim for injunctive relief by demonstrating that he
is being exposed to a substantial risk of serious harm at his
current place of incarceration. Again, plaintiff's
allegations must be specific in order to state a claim.
Plaintiff is informed that a protective custody inmate simply
coming into contact with a non-protective custody inmate does
not, per se, amount to a substantial risk of serious harm. If
plaintiff attempts to state a claim for injunctive relief,
plaintiff should identify the form of relief sought, keeping
in mind the general limitation on the court's authority
to order CDCR to transfer plaintiff to a different facility.
Plaintiff might be able to state a claim for damages under 42
U.S.C. § 1983 if he can point to facts demonstrating he
has suffered injury as a result of a defendant's
deliberate indifference to a substantial risk of serious
harm. Farmer, 511 U.S. at 828. With respect to
claims for damages, 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).
is informed that the court cannot refer to a prior pleading
or other material 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
plaintiff has filed motions seeking preliminary injunctive
relief (ECF Nos. 3, 13, 16). In light of the foregoing, these
motions are moot. To the extent plaintiff seeks orders for
return of legal property, law library access, writing
materials, etc., plaintiff is free to seek court intervention
if he is unable to draft and submit an amended complaint. To
the extent temporary conditions prevent plaintiff from
submitting an amended complaint within 30 days, plaintiff is
free to seek an extension of time within which to file his
accordance with the above, IT IS HEREBY ORDERED that:
Plaintiff's request for leave to proceed in forma