United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and 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 pursuant to 28 U.S.C. § 636(b)(1).
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 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
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's 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 when 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1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to
relief,' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). In order to survive
dismissal for failure to state a claim, a complaint must
contain more than “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Bell Atlantic,
550 U.S. at 555. However, “[s]pecific facts are not
necessary; the statement [of facts] need only ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atlantic, 550 U.S. at 555, citations and internal
quotations marks omitted). In reviewing a complaint under
this standard, the court must accept as true the allegations
of the complaint in question, Erickson, 551 U.S. at
93, and construe the pleading in the light most favorable to
the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds, Davis v.
Scherer, 468 U.S. 183 (1984).
as defendants are Correctional Officers Breen and Brinton and
Correctional Sergeant Snyder. Plaintiff alleges that he told
all defendants that his cellmate was going to attack him.
Plaintiff alleges that defendants denied his request for a
cell move. Plaintiff alleges that defendants' denial of
his request for a cell move away from his cellmate caused him
to suffer serious injuries, including permanent loss of
vision in his right eye.
officials have a duty to protect prisoners from violence at
the hands of other prisoners. Farmer v. Brennan, 511
U.S. 825, 833 (1994). The failure of prison officials to
protect inmates from attacks by other inmates may rise to the
level of an Eighth Amendment violation when: (1) the
deprivation alleged is “objectively, sufficiently
serious” and (2) the prison officials had “a
sufficiently culpable state of mind, ” acting with
deliberate indifference. Farmer, 511 U.S. at 834.
“[D]eliberate indifference entails something more than
mere negligence … [but] is satisfied by something less
than acts or omissions for the very purpose of causing harm
or with knowledge that harm will result. Id. at 835.
The prison official must “know and disregard an
excessive risk to inmate health or safety.”
appears to claim that his cellmate attacked him after
defendants denied his request for a cell move. However,
plaintiff does not allege when or where this attack occurred,
or when he had notified defendants of his concerns. Plaintiff
also does not describe any other circumstances of the attack.
Without knowing when and where the attack occurred, the
undersigned cannot determine whether plaintiff has stated a
potentially colorable Eighth Amendment claim against
defendants. For these reasons, plaintiff's complaint is
dismissed with leave to amend.
plaintiff chooses to amend the complaint, plaintiff must
demonstrate how the conditions about which he complains
resulted in a deprivation of plaintiff's constitutional
rights. See e.g., West v. Atkins, 487 U.S.
42, 48 (1988). Also, the complaint must allege in specific
terms how each named defendant is involved. Rizzo v.
Goode, 423 U.S. 362, 371 (1976). 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, 423 U.S.
at 371; May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
1980). Furthermore, vague and conclusory allegations of
official participation in civil rights violations are not
sufficient. Ivey v. Bd. of Regents, 673 F.2d 266,
268 (9th Cir. 1982).
addition, 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 requirement exists because, as a general
rule, an amended complaint supersedes the original complaint.
See Ramirez v. County of San Bernardino, 806 F.3d
1002, 1008 (9th Cir. 2015) (“an ‘amended
complaint supersedes the original, the latter being treated
thereafter as non-existent.'” (internal citation
omitted)). 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:
Plaintiff's request for leave to proceed in ...