(PC) Austell v. County of Sacramento ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AUSTELL, No. 2:20-cv-1103 DB P 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, 15 Defendant. 16 17 Plaintiff is a county inmate proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 I. Screening Requirement 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 II. Pleading Requirements 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989); Franklin, 745 F.2d at 1227. 17 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 18 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 19 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 20 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 21 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 22 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 23 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 24 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 25 McKeithen, 395 U.S. 411, 421 (1969). 26 III. Discussion 27 Plaintiff brings this action against the County of Sacramento for damages, but the factual 28 basis of plaintiff’s claims is not specified. Instead, plaintiff’s statement of his claim is, in its 1 entirety, “false arrest, falsified police documents, false imprisonment under the color of law, 2 violating my due process rights, sending copy of the affidavit to support my claim on 2/4/20 when 3 complaint was filed.” 4 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 5 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 6 court has determined that the complaint does not contain a short and plain statement as required 7 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 8 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 9 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 10 some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. 11 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the 12 complaint must be dismissed. 13 The Court will grant plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 14 809 F.2d 1446, 1448-49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead file a 15 notice of voluntary dismissal, and the action then will be terminated by operation of law. Fed. R. 16 Civ. P. 41(a)(1)(A)(i). Alternatively, plaintiff may forego amendment and notify the Court that he 17 wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th 18 Cir. 2004) (plaintiff may elect to forego amendment). If the last option is chosen, the undersigned 19 will issue findings and recommendations to dismiss the complaint, plaintiff will have an 20 opportunity to object, and the matter will be decided by a District Judge. 21 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation 22 of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual 23 matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 24 555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his 25 complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d 26 605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts 27 on curing the deficiencies set forth above. 28 wOAOe 2 OU UV VEEP MVOC Sr POO OPEN EN PAY OT Mt 1 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be 2 | complete in itself without reference to any prior pleading. As a general rule, an amended complaint 3 | supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an 4 | amended complaint is filed, the original complaint no longer serves a function in the case. Id. 5 | Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 6 | of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in 7 | bold font, “First Amended Complaint,” reference the appropriate case number, and be an original 8 | signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). 9 | Although accepted as true, the “[flactual allegations must be [sufficient] to raise a right to relief 10 | above the speculative level... .” Twombly, 550 U.S. at 555 (citations omitted). 11 IV. Conclusion 12 Based on the foregoing, it is HEREBY ORDERED that: 13 1. Plaintiff's request for leave to proceed in forma pauperis is granted. 14 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. 15 Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 16 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with 17 this court’s order to the Sheriff of Sacramento County filed concurrently herewith. 18 3. Within thirty days from the date of service of this order, plaintiff must file either a 19 first amended complaint curing the deficiencies identified by the Court in this order, 20 a notice of voluntary dismissal, or a notice of election to stand on the complaint; and 21 4. If plaintiff fails to file a first amended complaint or notice of voluntary dismissal, 22 the Court will recommend the action be dismissed, with prejudice, for failure to 23 obey a court order and failure to state a claim. 24 | Dated: August 25, 2020 26 ORAH BARNES iat. UNITED STATES MAGISTRATE JUDGE 28 | DB/mbox/Substantive/austl 103.sem