Butler v. People of the State of California
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 6/16/11 ORDERING that the amended complaint is DISMISSED for the reasons discussed above, with leave to file a second amended complaint within 28 days from the date of service of this order.(Dillon, 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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ARNOLD D. BUTLER,
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Plaintiff,
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No. CIV S-11-1052 GGH P
vs.
PEOPLE OF THE STATE OF
CALIFORNIA,
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Defendants.
ORDER
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/
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Plaintiff is a state prisoner proceeding pro se. Plaintiff has consented to the
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jurisdiction of the undersigned. See Docket # 5. By order filed on May 24, 2011, plaintiff’s
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“woefully deficient” initial filing, a purported civil rights complaint, was stricken and plaintiff
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was granted leave within twenty-eight days to file an amended complaint and either the
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appropriate in forma application or the filing fee. Plaintiff has filed an amended complaint, or at
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least he has purported to do so, and has paid the $350.00 filing fee in full.
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. 28
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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, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at
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570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for the
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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).
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Plaintiff once again provides wholly inadequate information to be able to proceed
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on a complaint. He names the Attorney General as the defendant, states his claim in its entirety
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as “due process” and states as the relief he seeks: “make the courts answer or dismissed [sic] the
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case.” Amended Complaint, pp. 2-3. As plaintiff was previously, inter alia, informed, Fed. R.
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Civ. P 8 sets forth general rules of pleading in the federal courts. Complaints are required to set
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a forth (1) the grounds upon which the court’s jurisdiction rests, (2) a short and plain statement of
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the claim showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. The
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amended complaint, as did the earlier filing, once again meets none of these requirements. Rule 8
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requires “sufficient allegations to put defendants fairly on notice of the claims against them.”
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McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991)). Accord Richmond v. Nationwide
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Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (amended complaint with vague and scanty
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allegations fails to satisfy the notice requirement of Rule 8.). Plaintiff will be afforded one
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further opportunity to amend, but if he should either fail to file a second amended complaint or
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should he again file a completely inadequate pleading, the case will be dismissed for failure to
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state a claim upon which relief may be granted.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms
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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless
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there is some affirmative link or connection between a defendant’s actions and the claimed
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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,
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vague and conclusory allegations of official participation in civil rights violations are not
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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in
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order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This is because, as a
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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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In accordance with the above, IT IS HEREBY ORDERED that the amended
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complaint is dismissed for the reasons discussed above, with leave to file a second amended
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complaint within twenty-eight days from the date of service of this order. Failure to file a second
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amended complaint will result in a recommendation that the action be dismissed. Should
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plaintiff file a second amended complaint as deficient as his prior filings, the case will be
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dismissed for plaintiff’s repeated failure to state a claim upon which relief may be granted.
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DATED: June 16, 2011
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/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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