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, 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
is informed as follows as to the contents of his amended
1. The amended complaint must be legible and clear and not
2. 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).
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).
3. The Eighth Amendment proscribes the “unnecessary and
wanton infliction of pain, ” which includes those
sanctions that are “so totally without penological
justification that it results in the gratuitous infliction of
suffering.” Gregg v. Georgia, 428 U.S. 153,
173 (1976). The Eighth Amendment does not require that
prisons be comfortable. Rhodes v. Chapman, 452 U.S.
337, 347 (1981).
4. The Equal Protection Clause of the Fourteenth Amendment
provides that no State shall “deny to any person within
its jurisdiction the equal protection of the laws.”
This is “essentially a direction that all similarly
situated persons should be treated alike, ” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985), and the basis for “a right to be free from
discrimination in statutory classifications and other
governmental activity.” Williams v. Vidmar,
367 F.Supp.2d 1265, 1270 (N.D. Cal. 2005).
plaintiff is informed that the 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. ...