1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LADARRIAN BUCKNER, No. 2:21-cv-1922 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO COUNTY JAIL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) 19 and Local Rule 302. On December 20, 2021, it was recommended that his action be dismissed 20 based on plaintiff’s failure to comply with the November 2, 2021 order. On March 17, 2022, 21 plaintiff, who had been transferred to state custody, filed an amended complaint and a motion to 22 proceed in forma pauperis. Therefore, the findings and recommendations are vacated. 23 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 24 Accordingly, the request to proceed in forma pauperis is granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 26 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 27 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 28 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 1 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 3 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 4 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 5 § 1915(b)(2). 6 Plaintiff’s amended complaint is now before the court. As set forth below, plaintiff’s 7 pleading is dismissed with leave to amend. 8 Screening Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 11 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 12 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 14 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 16 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 17 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 18 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 19 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 20 Cir. 1989); Franklin, 745 F.2d at 1227. 21 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 22 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 23 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 24 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 25 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 26 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 27 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 28 //// 1 most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. 2 McKeithen, 395 U.S. 411, 421 (1969). 3 Plaintiff’s Amended Complaint 4 In his original complaint, plaintiff brought claims against defendants at the Sacramento 5 County Jail, but now names the State of California in the caption of his amended complaint. 6 However, plaintiff names no individuals as defendants in the defendants’ section of his pleading. 7 As a statement of his claim, plaintiff writes: “I feel I’m having my rights as a human being 8 violated by authority. . . Excessive force used by authority using electronic devices of some 9 sort.” (ECF No. 8 at 4.) As relief, plaintiff seeks an order providing a fixed income or a letter 10 recommending plaintiff receive social security disability or authorization for settlement for pain 11 and suffering. (Id.) Plaintiff demands one million dollars, but states he is willing to settle for 12 $500,000. (ECF No. 8 at 6.) 13 Discussion 14 Plaintiff names the State of California as a defendant in the caption of his pleading. The 15 Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a 16 state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 17 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 18 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of California has not 19 consented to suit. Accordingly, any putative claims against the State of California are frivolous 20 and must be dismissed. 21 The court finds the allegations in plaintiff's amended complaint so vague and conclusory 22 that it is unable to determine whether the current action is frivolous or fails to state a claim for 23 relief.1 The court has determined that the amended complaint does not contain a short and plain 24 statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible 25 pleading policy, a complaint must give fair notice and state the elements of the claim plainly and 26 succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must 27 1 Plaintiff is advised that if he seeks social security disability benefits, he must apply directly to 28 Social Security for such benefits. This court does not issue recommendation letters for litigants. 1 name the individual plaintiff contends violated his constitutional rights.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LADARRIAN BUCKNER, No. 2:21-cv-1922 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO COUNTY JAIL, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) 19 and Local Rule 302. On December 20, 2021, it was recommended that his action be dismissed 20 based on plaintiff’s failure to comply with the November 2, 2021 order. On March 17, 2022, 21 plaintiff, who had been transferred to state custody, filed an amended complaint and a motion to 22 proceed in forma pauperis. Therefore, the findings and recommendations are vacated. 23 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 24 Accordingly, the request to proceed in forma pauperis is granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 26 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 27 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 28 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 1 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 3 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 4 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 5 § 1915(b)(2). 6 Plaintiff’s amended complaint is now before the court. As set forth below, plaintiff’s 7 pleading is dismissed with leave to amend. 8 Screening Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 11 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 12 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 14 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 16 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 17 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 18 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 19 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 20 Cir. 1989); Franklin, 745 F.2d at 1227. 21 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 22 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 23 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 24 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 25 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 26 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 27 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 28 //// 1 most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. 2 McKeithen, 395 U.S. 411, 421 (1969). 3 Plaintiff’s Amended Complaint 4 In his original complaint, plaintiff brought claims against defendants at the Sacramento 5 County Jail, but now names the State of California in the caption of his amended complaint. 6 However, plaintiff names no individuals as defendants in the defendants’ section of his pleading. 7 As a statement of his claim, plaintiff writes: “I feel I’m having my rights as a human being 8 violated by authority. . . Excessive force used by authority using electronic devices of some 9 sort.” (ECF No. 8 at 4.) As relief, plaintiff seeks an order providing a fixed income or a letter 10 recommending plaintiff receive social security disability or authorization for settlement for pain 11 and suffering. (Id.) Plaintiff demands one million dollars, but states he is willing to settle for 12 $500,000. (ECF No. 8 at 6.) 13 Discussion 14 Plaintiff names the State of California as a defendant in the caption of his pleading. The 15 Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a 16 state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 17 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 18 682 F.2d 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of California has not 19 consented to suit. Accordingly, any putative claims against the State of California are frivolous 20 and must be dismissed. 21 The court finds the allegations in plaintiff's amended complaint so vague and conclusory 22 that it is unable to determine whether the current action is frivolous or fails to state a claim for 23 relief.1 The court has determined that the amended complaint does not contain a short and plain 24 statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible 25 pleading policy, a complaint must give fair notice and state the elements of the claim plainly and 26 succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must 27 1 Plaintiff is advised that if he seeks social security disability benefits, he must apply directly to 28 Social Security for such benefits. This court does not issue recommendation letters for litigants. 1 name the individual plaintiff contends violated his constitutional rights. Plaintiff must allege with 2 at least some degree of particularity overt acts which each defendant engaged in that support 3 plaintiff’s claim. Id. Because plaintiff failed to comply with the requirements of Fed. R. Civ. P. 4 8(a)(2), the amended complaint must be dismissed. The court, however, grants leave to file a 5 second amended complaint. 6 Plaintiff does not allege facts supporting an Eighth Amendment excessive force claim. 7 However, in an abundance of caution, plaintiff is advised that the following legal standards apply 8 to an excessive force claim. 9 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 10 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 11 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S. 1 (1992)). 12 “[W]henever prison officials stand accused of using excessive physical force in violation of the 13 [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith 14 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 15 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312 (1986)). When determining whether the 16 force was excessive, we look to the “extent of the injury. . . , the need for application of force, the 17 relationship between that need and the amount of force used, the threat ‘reasonably perceived by 18 the responsible officials,’ and ‘any efforts made to temper the severity of a forceful response.’” 19 Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321). While de minimis uses of physical force 20 generally do not implicate the Eighth Amendment, significant injury need not be evident in the 21 context of an excessive force claim, because “[w]hen prison officials maliciously and sadistically 22 use force to cause harm, contemporary standards of decency always are violated.” Hudson, at 9 23 (citing Whitley, at 327). 24 If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how 25 the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or 26 statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended 27 complaint must allege in specific terms how each named defendant is involved. There can be no 28 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 1 defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. 2 Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 3 1978). Furthermore, vague and conclusory allegations of official participation in civil rights 4 violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 5 An amended complaint must be complete in itself without reference to any prior pleading. 6 Local Rule 220; See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) 7 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non- 8 existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original or 9 prior pleading is superseded. 10 Finally, plaintiff must use the court’s form for filing a civil rights complaint by a prisoner, 11 and specifically identify each individual named as a defendant in the defendant’s section of the 12 second amended complaint. 13 In accordance with the above, IT IS HEREBY ORDERED that: 14 1. The December 20, 2021 findings and recommendations (ECF No. 7) are vacated. 15 2. Plaintiff’s request for leave to proceed in forma pauperis is granted. 16 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 17 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 18 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 19 Director of the California Department of Corrections and Rehabilitation filed concurrently 20 herewith. 21 4. Plaintiff’s amended complaint (ECF No. 8) is dismissed. 22 5. Within thirty days from the date of this order, plaintiff shall complete the attached 23 Notice of Amendment and submit the following documents to the court: 24 a. The completed Notice of Amendment; and 25 b. An original of the Second Amended Complaint. 26 Plaintiff’s second amended shall comply with the requirements of the Civil Rights Act, the 27 Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended 28 complaint must also bear the docket number assigned to this case and must be labeled “Second 1 | Amended Complaint.” Failure to file an amended complaint in accordance with this order may 2 | result in the dismissal of this action. 3 6. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights 4 || complaint by a prisoner. 5 || Dated: April 11, 2022 Foci) Aharon 7 KENDALL fouck1922.14amd UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LADARRIAN BUCKNER, No. 2:21-cv-1922 JAM KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 SACRAMENTO COUNTY JAIL, et al., 14 Defendants. 15 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Second Amended Complaint DATED: 19
20 ________________________________ Plaintiff 21
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