Scott v. Sacramento Superior Court et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 06/20/11 ordering that plaintiff's third amended complaint is summarily dismissed with prejudice and this case is closed.(Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARK SCOTT,
Plaintiff,
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No. CIV S-11-0756 GGH P
vs.
SACRAMENTO SUPERIOR COURT,
et al.,
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Defendants.
ORDER
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Plaintiff, a county jail inmate proceeding pro se, has filed various filings in this
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action.1 On April 22, 2011, the court dismissed plaintiff’s application for a writ of habeas corpus
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(Doc. 1), a first amended petition for writ of habeas corpus (Doc. 4) and a civil rights complaint
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(Doc. 6), and informed plaintiff that he could only proceed with one action.
On April 27, 2011, plaintiff filed a first amended civil rights complaint and on
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April 29, 2011, a second amended civil rights complaint. The court screened the second
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amended civil rights complaint and dismissed it with leave to amend and noted no further
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amendments would be allowed. Plaintiff has filed a third amended complaint.
As previously stated, the court is required to screen complaints brought by
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This action is before the undersigned pursuant to plaintiff’s consent. Doc. 3.
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prisoners seeking relief against a governmental entity or officer or employee of a governmental
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entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the
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prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
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which relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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A complaint must contain more than a “formulaic recitation of the elements of a
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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the
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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).
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“The pleading must contain something more...than...a statement of facts that merely creates a
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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal
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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
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v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,
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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.
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1843 (1969).
Plaintiff’s prior complaint alleged that a jail official pushed him and yelled at him
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in the library. Plaintiff’s third amended complaint contains the same allegations that plaintiff
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was pushed, yet there are no allegations that plaintiff suffered any injuries. This action is clearly
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frivolous and is dismissed.
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To state an Eighth Amendment claim, a plaintiff must allege that the use of force
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was “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir.
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2001). The malicious and sadistic use of force to cause harm always violates contemporary
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standards of decency, regardless of whether or not significant injury is evident. Hudson v.
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McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). However, not “every malevolent touch by a
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prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth
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Amendment’s prohibition of cruel and unusual punishments necessarily excludes from
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constitutional recognition de minimis uses of physical force, provided that the use of force is not
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of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations marks and
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citations omitted).
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Because this court cannot discern any manner by which plaintiff could cure the
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defects of this third amended complaint, the court must order summary dismissal of this action.
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“A pro se litigant must be given leave to amend his or her complaint unless it is
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‘absolutely clear that the deficiencies of the complaint could not be cured by amendment.’”
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Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), quoting Noll [v.
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Carlson], 809 F.2d 1446, 1448 (in turn, quoting Broughton v. Cutter Laboratories, 622 F.2d 458,
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460 (9th Cir.1980) (per curiam)); accord Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th
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Cir.1987). Liberality in granting a plaintiff leave to amend “is subject to the qualification that the
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amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not
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futile.” Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 799 (9th Cir. 2001), quoting
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Bowles v. Reade, 198 F.3d 752, 757 (9th Cir.1999). “Under Ninth Circuit case law, district
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courts are only required to grant leave to amend if a complaint can possibly be saved. Courts are
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not required to grant leave to amend if a complaint lacks merit entirely.” Lopez v. Smith, 203
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F.3d 1122, 1129 (9th Cir. 2000) (“[A] district court retains its discretion over the terms of a
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dismissal for failure to state a claim, including whether to make the dismissal with or without
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leave to amend.”) See also, Smith v. Pacific Properties and Development Corp., 358 F.3d 1097,
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1106 (9th Cir. 2004), citing Doe v. United States, 58 F.3d 494, 497(9th Cir.1995) (“a district
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court should grant leave to amend even if no request to amend the pleading was made, unless it
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determines that the pleading could not be cured by the allegation of other facts.”). This appears
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to be one of those relatively rare cases when to grant plaintiff further leave to amend would be
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patently futile.
For the reasons set forth above, this court finds that plaintiff’s third amended
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complaint is wholly frivolous, with defects for which no amount of amendment could provide a
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cure, and for which the court must dismiss with prejudice.
In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s third
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amended complaint is summarily dismissed with prejudice and this case is closed.
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DATED: June 20, 2011
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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
scot0756.dis
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