claims dismissed with prejudice and without leave to amend do not have to be re-pled 27 in subsequent amended complaint to preserve appeal
How later courts described this case
- claims dismissed with prejudice and without leave to amend do not have to be re-pled 27 in subsequent amended complaint to preserve appeal
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 TORIANO GERMAINE SMITH, No. 2:19-cv-2107 TLN CKD P
12 Plaintiff,
13 v. ORDER
14 CALIFORNIA DEPARTMENT OF
CORRECTIONS & REHABILITATION,
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Defendant.
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18 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and
19 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
20 I. Application to Proceed In Forma Pauperis
21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.
22 § 1915(a). (ECF Nos. 2, 5.) Accordingly, the request to proceed in forma pauperis will be
23 granted.
24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.
25 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in
26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
28 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
1 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.
2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.
4 § 1915(b)(2).
5 II. Statutory Screening of Prisoner Complaints
6 The court is required to screen complaints brought by prisoners seeking relief against a
7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
8 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
9 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]
10 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
11 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
13 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal
14 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,
15 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as
16 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a
17 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.
18 Franklin, 745 F.2d at 1227-28 (citations omitted).
19 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
20 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
21 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
22 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
23 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context
24 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,
25 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure
26 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a
27 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the
28 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain
1 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
2 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur
3 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
4 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
5 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
6 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
7 content that allows the court to draw the reasonable inference that the defendant is liable for the
8 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this
9 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.
10 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the
11 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.
12 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).
13 III. Complaint
14 Plaintiff alleges that the California Department of Corrections and Rehabilitation (CDCR)
15 has subjected him to cruel and unusual punishment and violated his right to due process. (ECF
16 No. 1.) Specifically, he alleges that the prison is failing to provide hot or warm water, forcing
17 him to either forgo taking a shower or be subject to freezing cold water. (Id. at 3.) He further
18 alleges that every time his food is delivered it is thrown on the floor, which is covered in fecal
19 matter and other hazardous materials. (Id. at 4.) Finally, he alleges that his due process rights are
20 being violated because he is being denied an appeals system. (Id. at 5.)
21 IV. Failure to State a Claim
22 Plaintiff does not name any defendants other than the CDCR, and his claims against the
23 CDCR are barred by sovereign immunity. “[A]n unconsenting State is immune from suits
24 brought in federal courts by her own citizens.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)
25 (citations omitted). “Will[v. Michigan Department of State Police, 491 U.S. 58 (1989),]
26 establishes that the State and arms of the State, which have traditionally enjoyed Eleventh
27 Amendment immunity, are not subject to suit under § 1983 in either federal court or state court.”
28 Howlett v. Rose, 496 U.S. 356, 365 (1990). Accordingly, because the CDCR is an arm of the
1 state, plaintiff’s claims against the CDCR are barred. In order to state claims for cruel and
2 unusual punishment or violation of due process, plaintiff must identify the individuals whose
3 actions violated his rights and explain what they did or did not do that caused the violation.
4 Additionally, prisoners do not have “a separate constitutional entitlement to a specific
5 prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann
6 v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Accordingly, the prison grievance procedure does
7 not confer any substantive constitutional rights upon inmates and actions in reviewing and
8 denying inmate appeals generally do not serve as a basis for liability under § 1983. Id.
9 Therefore, plaintiff’s claims relating to the processing of appeals do not amount to a
10 constitutional violation.
11 V. Leave to Amend
12 If plaintiff chooses to file a first amended complaint, he must demonstrate how the
13 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo
14 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how
15 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th
16 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link
17 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy,
18 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official
19 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266,
20 268 (9th Cir. 1982) (citations omitted).
21 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make
22 his first amended complaint complete. Local Rule 220 requires that an amended complaint be
23 complete in itself without reference to any prior pleading. This is because, as a general rule, an
24 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
25 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th
26 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled
27 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended
28 complaint, the original complaint no longer serves any function in the case. Therefore, in an
1 amended complaint, as in an original complaint, each claim and the involvement of each
2 defendant must be sufficiently alleged.
3 VI. Plain Language Summary of this Order for a Pro Se Litigant
4 Your request to proceed in forma pauperis is granted and you are not required to pay the
5 entire filing fee immediately.
6 The complaint is dismissed with leave to amend because you cannot bring claims against
7 the CDCR for violating your constitutional rights. You have to identify the people who violated
8 your rights and explain what each person did or did not do.
9 If you choose to amend your complaint, the first amended complaint must include all of
10 the claims you want to make because the court will not look at the claims or information in the
11 original complaint. Any claims and information not in the first amended complaint will not
12 be considered.
13 In accordance with the above, IT IS HEREBY ORDERED that:
14 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.
15 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
16 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
17 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
18 Director of the California Department of Corrections and Rehabilitation filed concurrently
19 herewith.
20 3. Plaintiff’s complaint is dismissed with leave to amend.
21 4. Within thirty days from the date of service of this order, plaintiff may file an amended
22 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
23 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
24 number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an
25 original and two copies of the amended complaint. Failure to file an amended complaint in
26 accordance with this order will result in dismissal of this action.
27 ////
28 ////
1 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
2 | form used in this district.
3 | Dated: April 7, 2020 Po Pg, fF
/- it LE 9
4 CAROLYN K. DELANEY
5 UNITED STATES MAGISTRATE JUDGE
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