(PC) Allen v. Her ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROY C. ALLEN, No. 2:24-cv-1643 CKD P 12 Plaintiff, 13 v. ORDER 14 HER, et al., 15 Defendants. 16 17 18 Plaintiff is a Sacramento County Jail pretrial detainee proceeding pro se and seeking relief 19 pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 20 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 28 ///// 1 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 2 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 9 which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The 10 court will, however, grant leave to file an amended complaint. 11 Plaintiff complains about use of force. While plaintiff adequately alleges that force was 12 used against him, he is not clear as to whether the force used was excessive in violation of the 13 Fourteenth Amendment. In order to state a claim for excessive force under the Fourteenth 14 Amendment plaintiff must point to facts showing a defendant’s use of force was (1) deliberate; 15 and (2) objectively unreasonable. Kingsley v. Hendrickson, 576 U.S. 389, 395-97 (2015). As to 16 the second element, objective reasonableness turns on the facts of each case, such as “the 17 relationship between the need for the use of force and the amount of force used; the extent of the 18 plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the 19 severity of the security problem at issue; the threat reasonably perceived by the officer; and 20 whether the plaintiff was actively resisting.” Id. at 397. 21 In his complaint, plaintiff has not provided enough factual detail as to why force was used 22 against him to determine whether the amount of force used was excessive. 23 Also, with respect to certain defendants, plaintiff’s claims are vague and conclusory. If 24 plaintiff chooses to amend the complaint, plaintiff must demonstrate with specific facts how a 25 defendant’s actions violated plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 26 (9th Cir. 1980). Plaintiff must allege in specific terms how each named defendant is involved. 27 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 28 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 1 |} 362 (1976). Furthermore, vague and conclusory allegations of official participation in civil rights 2 | violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 3 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 4 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 5 || complaint be complete in itself without reference to any prior pleading. This is because, as a 6 || general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 7 || F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 8 | longer serves any function in the case. Therefore, in an amended complaint, as in an original 9 || complaint, each claim and the involvement of each defendant must be sufficiently alleged. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 13 || shall be collected and paid in accordance with this court’s order to the Sacramento County Sheriff 14 | filed concurrently herewith. 15 3. Plaintiff's complaint is dismissed. 16 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 17 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 18 || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 19 || number assigned this case and must be labeled “Amended Complaint.” Failure to file an 20 || amended complaint in accordance with this order will result in a recommendation that this action 21 | be dismissed. 22 | Dated: August 30, 2024 / □□ I / dle ae 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 alle 1643.14 28