(PC) McNeal v. Fleming ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 VERNON WAYNE MCNEAL, Case No. 2:21-cv-02137-JDP (PC) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 11 v. PAUPERIS 12 FLEMING, et al., ECF No. 2 13 Defendants. SCREENING ORDER THAT PLAINTIFF: 14 (1) STAND BY HIS COMPLAINT SUBJECT TO A 15 RECOMMENDATION OF DISMISSAL OF CLAIMS AND 16 PARTIES, OR 17 (2) FILE AN AMENDED COMPLAINT 18 ECF No. 1 19 THIRTY-DAY DEADLINE 20 21 22 23 Plaintiff, a state prisoner, alleges that defendants used excessive force against him in 24 2001. ECF No. 1 at 5-10. This claim appears to be barred by the statute of limitations. I will 25 give plaintiff a chance to amend his complaint and to explain why it should still proceed. 26 Plaintiff has also filed an application to proceed in forma pauperis, which I will grant. ECF No. 27 2. 28 1 2 Screening Order 3 I. Screening and Pleading Requirements 4 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 5 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 6 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 7 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 8 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 9 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 10 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 11 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 12 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 14 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 15 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 16 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 17 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 18 n.2 (9th Cir. 2006) (en banc) (citations omitted). 19 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 20 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 21 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 23 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 24 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 25 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 26 27 28 1 2 II. Analysis 3 Plaintiff alleges that in September of 2001, while he was incarcerated at High Desert State 4 Prison, defendant correctional officers used excessive force against him after he refused to accept 5 a cellmate. ECF No. 1 at 6-7. The statute of limitations in a section 1983 action is derived from 6 the forum state’s statute of limitations for personal injury actions. Usher v. Los Angeles, 828 F.2d 7 556, 558 (9th Cir. 1987). Under California law, a prisoner serving a term less than life has four 8 years to bring a personal injury action. Cal. Code of Civ. Proc. §§ 335.1, 352.1(a). Plaintiff 9 alleges that the injury at issue in this case occurred in September 2001, more than twenty years 10 before this action was filed. Accordingly, it appears that plaintiff’s claim is irredeemably time- 11 barred.1 However, before recommending that this action be dismissed, I will grant plaintiff leave 12 to amend so that he may explain why this action should still proceed. 13 If plaintiff decides to file an amended complaint, the amended complaint will supersede 14 the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 15 banc). This means that the amended complaint will need to be complete on its face without 16 reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 17 filed, the current complaint no longer serves any function. Therefore, in an amended complaint, 18 as in an original complaint, plaintiff will need to assert each claim and allege each defendant’s 19 involvement in sufficient detail. The amended complaint should be titled “Amended Complaint” 20 and refer to the appropriate case number. If plaintiff does not file an amended complaint, I will 21 recommend that claims or parties be dismissed. 22 Accordingly, it is ORDERED that: 23 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is GRANTED. 24 2. Within thirty days from the service of this order, plaintiff must either file an Amended 25 26 1 While generally raised as an affirmative defense, failure to comply with the statute of 27 limitations may be considered at the screening phase if that failure is apparent, from the face of the complaint, that plaintiff cannot “prevail, as a matter of law, on the equitable tolling issue.” 28 See Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). 1 | Complaint or advise the court he wishes to stand by his current complaint. If he selects the latter 2 | option, I will recommend that claims or parties be dismissed. 3 3. Failure to comply with this order may result in the dismissal of this action. 4 4. The Clerk of Court is directed to send plaintiff a complaint form. 5 6 IT IS SO ORDERED. Dated: _ June 8, 2022 8 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28