The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 CARLOS A. RAMIREZ, No. 2:20-cv-0624 CKD P
12 Plaintiff,
13 v. ORDER
14 ELENA D’AUGUSTINO, et al.,
15 Defendants.
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17 Plaintiff is a Solano County Jail prisoner proceeding pro se. This proceeding was referred
18 to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
19 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a
20 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.
21 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
22 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the
23 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.
24 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding
25 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
26 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
27 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
28 /////
1 The court is required to screen complaints brought by prisoners seeking relief against a
2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
6 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
7 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
8 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
9 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
10 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
11 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
12 Cir. 1989); Franklin, 745 F.2d at 1227.
13 In order to avoid dismissal for failure to state a claim a complaint must contain more than
14 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
15 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
16 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
17 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
18 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
19 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
20 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
21 at 678. When considering whether a complaint states a claim upon which relief can be granted,
22 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and
23 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
24 U.S. 232, 236 (1974).
25 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon
26 which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The
27 court will, however, grant leave to file an amended complaint.
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1 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
2 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.
3 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in
4 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C.
5 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the
6 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory
7 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of
8 Regents, 673 F.2d 266, 268 (9th Cir. 1982).
9 Plaintiff appears to challenge ongoing criminal proceedings. Plaintiff is informed as
10 follows:
11 1. When a state prisoner challenges the legality of his custody and the relief he seeks is
12 the determination of his entitlement to an earlier or immediate release, his sole federal remedy is a
13 writ of habeas corpus which plaintiff would seek under 28 U.S.C. § 2254. Preiser v. Rodriguez,
14 411 U.S. 475, 500 (1973). Also, to the extent plaintiff seeks damages for currently being in
15 custody, plaintiff is informed he cannot proceed on a §1983 claim for damages if the claim
16 implies the invalidity of his custody. See Heck v. Humphrey, 512 U.S. 477, 487 (1994).
17 2. Federal courts cannot interfere with pending state criminal proceedings, absent
18 extraordinary circumstances which create a threat of irreparable injury. Younger v. Harris, 401
19 U.S. 37, 45-46 (1971). Irreparable injury does not exist in such situations if the threat to
20 plaintiff’s federally protected rights may be eliminated by his defense of the criminal case.
21 Moreover, “even irreparable injury is insufficient [to permit interference with the proceeding]
22 unless it is ‘both great and immediate.’” Id. at 46 (quoting Fenner v. Boykin, 271 U.S. 240, 243-
23 44 (1926)).
24 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to
25 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
26 complaint be complete in itself without reference to any prior pleading. This is because, as a
27 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
28 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
1 | longer serves any function in the case. Therefore, in an amended complaint, as in an original
2 | complaint, each claim and the involvement of each defendant must be sufficiently alleged.
3 In accordance with the above, IT IS HEREBY ORDERED that:
4 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted.
5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees
6 | shall be collected and paid in accordance with this court’s order to the Solano County Sheriff
7 | filed concurrently herewith.
8 3. Plaintiff's complaint is dismissed.
9 4. Plaintiff is granted thirty days from the date of service of this order to file an amended
10 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
11 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
12 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an
13 || amended complaint in accordance with this order will result in a recommendation that this action
14 | be dismissed.
15 || Dated: March 26, 2020 eo dp. A Gx
16 CAROLYN K.DELANEY 7
17 UNITED STATES MAGISTRATE JUDGE
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