- 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDIE A. JARAMILLO, No. 2:22-cv-0075-WBS-EFB P 12 Plaintiff, 13 v. ORDER 14 T. TAPPAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. In addition to filing a complaint, he has filed an application for leave to proceed 19 in forma pauperis pursuant to 28 U.S.C. § 1915. 20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 Screening Order 25 Liberally construed, the complaint states a potentially cognizable Eighth Amendment 26 excessive force claim against defendant correctional officer T. Tappan. See ECF No. 1 at 3 27 (alleging that on March 27, 2020, Tappan maliciously beat plaintiff’s hand with his baton, and 28 broke plaintiff’s finger). 1 The complaint also lists R. Ehlers, Faye, and Lieutenant Manes as defendants but contains 2 no allegations against them. Accordingly, claims against these defendants are dismissed with 3 leave to amend. 4 Plaintiff may either proceed with his Eighth Amendment excessive force claim against 5 defendant Tappan only or he may amend his complaint to attempt to assert additional claims 6 against the other named defendants. He may not, however, change the nature of this suit by 7 alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Moreover, 8 plaintiff is not obligated to amend his complaint. 9 Leave to Amend 10 Plaintiff may file an amended complaint to attempt to cure the deficiencies noted above. 11 Any amended complaint must identify as a defendant only persons who personally participated in 12 a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 13 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if 14 he does an act, participates in another’s act or omits to perform an act he is legally required to do 15 that causes the alleged deprivation). Plaintiff is not obligated to file an amended complaint. 16 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 17 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 18 Any amended complaint must be written or typed so that it so that it is complete in itself 19 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 20 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 21 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 22 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 23 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 24 1967)). 25 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 26 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 27 See Local Rule 110. 28 ///// 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiffs request to proceed in forma pauperis (ECF No. 2) is GRANTED. 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 5 in accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith. 7 3. Plaintiffs complaint alleges, for screening purposes, a potentially cognizable 8 Eighth Amendment excessive force claim against defendant T. Tappan. 9 4. All other claims (including those against defendants Ehlers, Faye, and Manes) are 10 dismissed with leave to amend within 30 days of service of this order. Plaintiff is 11 not obligated to amend his complaint. 12 5. Within thirty days plaintiff shall return the notice below advising the court whether 13 he elects to proceed with the cognizable claim or file an amended complaint. If 14 the former option is selected and returned, the court will enter an order directing 15 service at that time. 16 6. Failure to comply with any part of this this order may result in dismissal of this 17 action. 18 | Dated: February 7, 2022. 19 > 20 / EDMUND F. BRENNAN 71 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 RUDIE A. JARAMILLO, No. 2:22-cv-0075-WBS-EFB P 10 Plaintiff, 11 v. NOTICE 12 T. TAPPAN, et al., 13 Defendants. 14 15 In accordance with the court’s Screening Order, plaintiff hereby elects to: 16 17 (1) ______ proceed only with the Eighth Amendment excessive force claim against 18 defendant T. Tappan; 19 20 OR 21 22 (2) ______ delay serving any defendant and file an amended complaint. 23 24 _________________________________ 25 Plaintiff 26 Dated: 27 28
Document Info
Docket Number: 2:22-cv-00075
Filed Date: 2/7/2022
Precedential Status: Precedential
Modified Date: 6/19/2024