(PC) Iseli v. Unknown

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 BRANDEN WILLIE ISELI, No. 2:23-cv-00199 AC 12 Plaintiff, 13 v. ORDER 14 UNKNOWN, 15 Defendant. [16] 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 . 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the motion to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915 (b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against “a 5 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 6 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639 , 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327 ), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, [23] 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Complaint 12 Plaintiff is challenging actions that occurred at California State Prison-Sacramento. On 13 the form complaint, plaintiff identified the defendant as “the alleged” without providing any other 14 information or job title. ECF No. 1 at 2. The supporting facts describe a possible due process 15 violation related to visitation restrictions that were imposed on plaintiff. ECF No. 1 at 3. By way 16 of relief, plaintiff seeks to have these visitation restrictions lifted and to have additional 17 commissary and dietary privileges awarded to him. ECF No. 1 at 6. 18 IV. Failure to State a Claim 19 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 20 unable to determine whether the current action is frivolous or fails to state a claim for relief. 21 Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice 22 and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 23 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity 24 overt acts which defendants engaged in that support plaintiff's claim. Id. 25 Furthermore, plaintiff does not identify any actual defendant in this case. The civil rights 26 statute requires that there be an actual connection or link between the actions of individually 27 named defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. 28 Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 1 Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a constitutional 2 right, within the meaning of section 1983, if he does an affirmative act, participates in another's 3 affirmative acts or omits to perform an act which he is legally required to do that causes the 4 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) 5 (citation omitted). In order to state a claim for relief under section 1983, plaintiff must link a 6 named defendant with some affirmative act or omission that demonstrates a violation of plaintiff's 7 federal rights. The complaint fails to meet this basic pleading standard. 8 For all these reasons, the complaint must be dismissed. The court will, however, grant 9 leave to file an amended complaint. 10 V. Leave to Amend 11 The complaint does not state any cognizable claims for relief and plaintiff will be given an 12 opportunity to file an amended complaint. If plaintiff chooses to file an amended complaint, he 13 must demonstrate how the conditions about which he complains resulted in a deprivation of his 14 constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). The complaint must also 15 allege in specific terms how each named defendant is involved. Arnold v. Int’l Bus. Machs. 16 Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983 17 unless there is some affirmative link or connection between a defendant’s actions and the claimed 18 deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and 19 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 20 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 21 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 22 his amended complaint complete. Local Rule 220 requires that an amended complaint be 23 complete in itself without reference to any prior pleading. This is because, as a general rule, an 24 amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 25 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 26 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 27 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 28 any previous complaints no longer serve any function in the case. Therefore, in an amended 1 complaint, as in an original complaint, each claim and the involvement of each defendant must be 2 sufficiently alleged. 3 VI. Plain Language Summary of this Order for a Pro Se Litigant 4 Your request to proceed in forma pauperis is granted. That means you do not have to pay 5 the entire filing fee now. You will pay it over time, out of your trust account. 6 Your complaint will not be served because the facts you alleged are not enough to state a 7 claim. You need to identify an individual by name as the defendant who you are suing and 8 explain what action(s) that individual took which violated your constitutional rights. 9 You may amend your complaint to try to fix these problems. Be sure to provide facts that 10 show exactly what each defendant did to violate your rights or to cause a violation of your rights. 11 If you choose to file an amended complaint, it must include all claims you want to bring. 12 Once an amended complaint is filed, the court will not look at any information in the original 13 complaint. Any claims and information not in the amended complaint will not be 14 considered. 15 In accordance with the above, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. 17 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 18 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 19 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 20 appropriate agency filed concurrently herewith. 21 3. Plaintiff’s complaint fails to state a claim upon which relief may be granted, see 28 22 U.S.C. § 1915A, and will not be served. 23 4. Within thirty days from the date of service of this order, plaintiff may file an amended 24 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 25 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 26 number assigned this case and must be labeled “First Amended Complaint.” Failure to file an 27 amended complaint in accordance with this order will result in a recommendation that this action 28 be dismissed. 1 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 2 | form used in this district. 3 || DATED: March 21, 2024 ~ 4 AMhan—lChne ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE [10] 1]