Corbett v. Hawkins et al
Filing
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ORDER signed by Magistrate Judge John F. Moulds on 6/9/2011 ORDERING that pltf's 2 request to proceed IFP is GRANTED; pltf to pay the $350.00 filing fee w/ an initial partial filing fee in accordance w/ the concurrent CDC order; pltf's cmplt is DISMISSED; w/in 30 days, pltf to complete and return the Notice of Amendment w/ the required documents. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL CORBETT,
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Plaintiff,
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No. 2:11-cv-1197-JFM (PC)
vs.
R. MICHAEL HAWKINS, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42
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U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.
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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
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§ 636(b)(1).
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Plaintiff has 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.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28
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U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee
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in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will
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direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account
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and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly
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payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust
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account. These payments will be forwarded by the appropriate agency to the Clerk of the Court
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each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28
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U.S.C. § 1915(b)(2).
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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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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and
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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355
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U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim a complaint must
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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain
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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,
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id. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘“give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’” Erickson
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v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell, 127 S.Ct. at 1964, in turn
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quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this
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standard, the court must accept as true the allegations of the complaint in question, Erickson, id.,
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and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416
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U.S. 232, 236 (1974).
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The court finds the allegations in plaintiff’s complaint so vague and conclusory
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that it is unable to determine whether the current action is frivolous or fails to state a claim for
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relief. The court has determined that the complaint does not contain a short and plain statement
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as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading
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policy, a complaint must give fair notice and state the elements of the claim plainly and
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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff
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must allege with at least some degree of particularity overt acts which defendants engaged in that
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support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of Fed.
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R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file
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an amended complaint.
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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 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory
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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of
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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:
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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.
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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently
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herewith.
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3. Plaintiff’s complaint is dismissed.
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4. Within thirty days from the date of this order, plaintiff shall complete the
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attached Notice of Amendment and submit the following documents to the court:
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a. The completed Notice of Amendment; and
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b. An original and one copy of the Amended Complaint.
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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the
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Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must
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bear the docket number assigned this case and must be labeled “Amended Complaint”; failure to
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file an amended complaint in accordance with this order may result in the dismissal of this
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action.
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DATED: June 9, 2011.
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/014;corb1197.14new
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL CORBETT,
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Plaintiff,
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vs.
R. MICHAEL HAWKINS, et al.,
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Defendants.
Plaintiff hereby submits the following document in compliance with the court's
order filed
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NOTICE OF AMENDMENT
_____________________________/
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No. 2:11-cv-1197-JFM (PC)
:
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Amended Complaint
DATED:
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Plaintiff
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