Jayne v. Van Buskirk, et al.
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 6/21/2011. Plaintiff's 2 Motion to Proceed In Forma Pauperis is GRANTED and he is obligated to pay $350.00 filing fee. Plaintiff assessed initial partial filing fee. Plaintiff's 1 Complaint is DISMISSED and, w/in 30 days form date of Order, shall complete attached Notice of Amendment and enclosed Prisoner's Civil Rights form. (Marciel, 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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MIKE JAYNE,
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Plaintiff,
No. 2: 11-cv-1448 GEB KJN P
vs.
DONALD VAN BUSKIRK, et al.,
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Defendants.
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ORDER
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Plaintiff is a prisoner proceeding without counsel. Plaintiff seeks relief pursuant
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to 42 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 pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rule 302.
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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.
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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing
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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court
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will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust
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account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make
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monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s 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.
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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably
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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
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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, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
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(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more
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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,
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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair
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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept
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as true the allegations of the complaint in question, id., and construe the pleading in the light
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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
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Plaintiff is incarcerated at the Shasta County Jail. In his 51 page complaint,
plaintiff complains about the conditions at the Shasta County jail. Federal Rule of Civil
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Procedure 8(a) requires pleadings to contain a short and plain statement of the claims. After
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reviewing plaintiff’s complaint, the undersigned has determined that it does not comply with
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Federal Rule of Civil Procedure 8(a). Plaintiff could state his claims in a substantially shorter
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complaint. Accordingly, plaintiff’s complaint is dismissed with leave to amend. If plaintiff files
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an amended complaint, it may be no longer than 25 pages.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights.
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Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms
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how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983
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unless there is some affirmative link or connection between a defendant’s actions and the
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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,
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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official
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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,
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268 (9th Cir. 1982).
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In addition, plaintiff is hereby informed that the court cannot refer to a prior
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pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that
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an amended complaint be complete in itself without reference to any prior pleading. This
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requirement exists because, as a general rule, an amended complaint supersedes the original
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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended
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complaint, the original pleading no longer serves any function in the case. Therefore, in an
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amended complaint, as in an original complaint, each claim and the involvement of each
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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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Shasta County Sheriff filed concurrently herewith.
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3. Plaintiff’s complaint is dismissed with leave to file an amended complaint that
is no longer than 25 pages.
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4. Within thirty days from the date of this order, plaintiff shall complete the
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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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”
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Failure to file an amended complaint in accordance with this order may result in the dismissal of
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this action.
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DATED: June 21, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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ja1448.14
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MIKE JAYNE,
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Plaintiff,
vs.
DONALD VAN BUSKIRK,
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____________________________________/
Plaintiff hereby submits the following document in compliance with the court's
order filed
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NOTICE OF AMENDMENT
Defendants.
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No. 2: 11-cv-1448 GEB KJN P
:
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Amended Complaint
DATED:
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Plaintiff
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