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).
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
plaintiff chooses to amend the complaint, plaintiff must
demonstrate in specific terms how the conditions complained
of have resulted in deprivation of plaintiff's
constitutional rights. See Ellis v. Cassidy, 625
F.2d 227 (9th Cir. 1980). With respect to conditions of
confinement, plaintiff is informed that the Eighth Amendment
protects plaintiff from being exposed to a substantial risk
of serious harm. See Farmer v. Brennan, 511 U.S.
825, 828 (1994). However, the court generally does not have
the authority to order the California Department of
Corrections and Rehabilitation (CDCR) where it must 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.
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.
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 a motion seeking preliminary injunctive relief
(ECF No. 3). In light of the foregoing, the motion will be
denied without prejudice. Plaintiff may submit a motion for
preliminary injunctive relief with his amended complaint if
he chooses. But, preliminary injunctive relief cannot be
granted until a defendant has been served with process and
has had an opportunity to respond to the motion.
accordance with the above, IT IS HEREBY ORDERED that:
Plaintiffs request for leave to proceed in forma pauperis
(ECF No. 2) 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 ...