(PC) Smith v. Grove ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLEMAN KENYATTA SMITH, Jr., No. 2:18-cv-2549-EFB P 12 Plaintiff, 13 v. ORDER 14 J. GROVE, et al., 15 Defendants. 16 17 Plaintiff, who is a state prisoner, proceeds without counsel in this action brought pursuant 18 to 42 U.S.C. § 1983. On March 10, 2020, the court dismissed plaintiff’s third amended complaint 19 on screening for failure to meet the pleading requirements of Rule 8 of the Federal Rules of Civil 20 Procedure. ECF No. 17. Plaintiff has now filed his fourth amended complaint (ECF No. 20) and 21 the court must screen it. 22 Screening 23 I. Legal Standards 24 The court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 28 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 1 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 4 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 5 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 6 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 7 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 8 has an arguable legal and factual basis. Id. 9 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 10 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 11 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 12 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 14 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 15 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 16 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 17 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 18 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d 19 ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 22 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 23 that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 25 under this standard, the court must accept as true the allegations of the complaint in question, 26 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 27 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 28 McKeithen, 395 U.S. 411, 421 (1969). 1 II. Analysis 2 As before, the current complaint (ECF No. 20) alleges a single excessive force claim 3 against defendants Grove and RaSheve. It is devoid of factual context, alleging only that on an 4 unspecified date, plaintiff “was handcuffed and [his] legs were cuffed [and] for no reason [he] 5 was thrown to the ground and beaten” by the defendants. ECF No. 20 at 3. The court has 6 previously informed plaintiff that scant allegations like these are not sufficient to survive 7 screening. See ECF No. 9 at 3; ECF No. 17 at 2-3. Like his prior complaints, plaintiff fails to 8 provide much factual context for his claims, such as when the incident occurred or the nature of 9 the assault or how long it lasted. The court previously warned plaintiff that as drafted, his claim 10 does not rise above the sort of “unadorned, the-defendant-unlawfully-harmed-me accusation” that 11 the Supreme Court has deemed non-compliant with Rule 8 of the Federal Rules of Civil 12 Procedure. See ECF No. 17 at 3-4 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 13 Plaintiff was given leave to amend after the previous dismissal and has filed a complaint 14 that retains all of the deficiencies of its predecessor. In an abundance of caution, the court will 15 grant plaintiff one more chance to amend. At a minimum, any amended complaint should at least 16 give an idea of when the alleged beating occurred. Further, any amended complaint must be 17 written or typed so that it so that it is complete in itself without reference to any earlier filed 18 complaint. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier 19 filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer 20 serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the 21 “‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) 22 (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). 23 Conclusion 24 Accordingly, it is ORDERED that: 25 1. Plaintiff’s fourth amended complaint (ECF No. 20) is dismissed with leave to 26 amend within 30 days from the date of service of this order; and 27 ///// 28 ///// wOoe 2:40 UV VENTS RP UETOCTI ot PC Ue PAY Tt 1 2. Failure to file an amended complaint that complies with this order may result in 2 the dismissal of this action for the reasons stated herein. 3 | DATED: May 4, 2020. 4 Dating 5 Cb iA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28