1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DELMAR JEWELL DIXON, Jr., No. 2:19-cv-1966-EFB P 12 Plaintiff, 13 v. ORDER 14 JOE LIZARRAGA, et al. 15 Defendants. 16 17 Plaintiff, proceeding without counsel in this action brought pursuant to 42 U.S.C. § 1983, 18 has filed an application to proceed in forma pauperis. ECF Nos. 5, 9. 19 Application to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1). 21 Accordingly, plaintiff’s request to proceed in forma pauperis is granted. 22 Screening 23 I. Legal Standards 24 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines that 25 the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim 26 on which relief may be granted, or seeks monetary relief against an immune defendant. 27 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 28 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint's allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 10 In reviewing a complaint under this standard, the court must accept as true the allegations 11 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 12 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 13 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 14 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 15 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 16 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 17 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 18 II. Analysis 19 Plaintiff’s complaint is too vague and conclusory to state a cognizable claim.1 He has 20 sued ten defendants and broadly alleges that all had some involvement in false 21 criminal/disciplinary charges that were brought against him. ECF No. 1 at 5-14. Plaintiff never 22 explicitly states what charges were brought against him,2 where he was tried for the same, 23 whether he was convicted and, if he was convicted, what punishment he received. Instead, he 24 contents himself with conclusions like “L. Lundy knowingly and willingly violated his oath of
25 1 The amended complaint is identical to the original complaint apart from its inclusion of 26 various exhibits.
27 2 Plaintiff does reference a “narcotic identification field test” and, thus, the court assumes that he was charged with an offense somehow related to possession of narcotics. ECF No. 1 at 28 12. 1 office by signing off on an (sic) Rules Violation Report that violated [p]laintiff’s rights.” Id. at 2 14. It is entirely unclear to the reader what substance Lundy is alleged to have “signed off on” or 3 even what that term means in this context. Similarly, plaintiff alleges that defendant Crounse 4 violated California Department of Corrections and Rehabilitation policy when he “entered false 5 information in . . . [the] Rules Violation Report hearing.” Id. at 13. Plaintiff never elaborates as 6 to what false information was entered or how it affected the outcome of his hearing. Elsewhere, 7 plaintiff alleges that defendant Navarro “provided false information to remove plaintiff from the 8 general population at Mule Creek State Prison . . . .” Id. at 6. Again, he fails to allege what false 9 information was provided or to whom Navarro provided it. Plaintiff fares little better with the 10 other named defendants and the court finds it unnecessary to provide examples of each in this 11 order. Suffice it to say that, while the Federal Rules of Civil Procedure do not demand detailed 12 factual allegations, “a pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of 13 the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (quoting Twombly, 550 U.S. at 555). A complaint does not suffice “if it tenders ‘naked 15 assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). 16 An amended complaint, if plaintiff elects to file one, must specifically allege the wrongdoing 17 each defendant is accused of. 18 III. Leave to Amend 19 Plaintiff will be given leave to amend to address the deficiencies identified above. He is 20 cautioned that any amended complaint must identify as a defendant only persons who personally 21 participated in a substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 22 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional 23 right if he does an act, participates in another’s act or omits to perform an act he is legally 24 required to do that causes the alleged deprivation). Plaintiff may also include any allegations 25 based on state law that are so closely related to his federal allegations that “they form the same 26 case or controversy.” See 28 U.S.C. § 1367(a). 27 The amended complaint must also contain a caption including the names of all defendants. 28 Fed. R. Civ. P. 10(a). wOoOe 2:4 UV VEY BP UETIOCTIL ba POO PAY Tt
1 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 2 || George, 507 F.3d 605 at 607. 3 Any amended complaint must be written or typed so that it so that it is complete in itself 4 || without reference to any earlier filed complaint. E.D. Cal. L.R. 220.
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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 DELMAR JEWELL DIXON, Jr., No. 2:19-cv-1966-EFB P 12 Plaintiff, 13 v. ORDER 14 JOE LIZARRAGA, et al. 15 Defendants. 16 17 Plaintiff, proceeding without counsel in this action brought pursuant to 42 U.S.C. § 1983, 18 has filed an application to proceed in forma pauperis. ECF Nos. 5, 9. 19 Application to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1). 21 Accordingly, plaintiff’s request to proceed in forma pauperis is granted. 22 Screening 23 I. Legal Standards 24 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines that 25 the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim 26 on which relief may be granted, or seeks monetary relief against an immune defendant. 27 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 28 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint's allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 10 In reviewing a complaint under this standard, the court must accept as true the allegations 11 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 12 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 13 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 14 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 15 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 16 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 17 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 18 II. Analysis 19 Plaintiff’s complaint is too vague and conclusory to state a cognizable claim.1 He has 20 sued ten defendants and broadly alleges that all had some involvement in false 21 criminal/disciplinary charges that were brought against him. ECF No. 1 at 5-14. Plaintiff never 22 explicitly states what charges were brought against him,2 where he was tried for the same, 23 whether he was convicted and, if he was convicted, what punishment he received. Instead, he 24 contents himself with conclusions like “L. Lundy knowingly and willingly violated his oath of
25 1 The amended complaint is identical to the original complaint apart from its inclusion of 26 various exhibits.
27 2 Plaintiff does reference a “narcotic identification field test” and, thus, the court assumes that he was charged with an offense somehow related to possession of narcotics. ECF No. 1 at 28 12. 1 office by signing off on an (sic) Rules Violation Report that violated [p]laintiff’s rights.” Id. at 2 14. It is entirely unclear to the reader what substance Lundy is alleged to have “signed off on” or 3 even what that term means in this context. Similarly, plaintiff alleges that defendant Crounse 4 violated California Department of Corrections and Rehabilitation policy when he “entered false 5 information in . . . [the] Rules Violation Report hearing.” Id. at 13. Plaintiff never elaborates as 6 to what false information was entered or how it affected the outcome of his hearing. Elsewhere, 7 plaintiff alleges that defendant Navarro “provided false information to remove plaintiff from the 8 general population at Mule Creek State Prison . . . .” Id. at 6. Again, he fails to allege what false 9 information was provided or to whom Navarro provided it. Plaintiff fares little better with the 10 other named defendants and the court finds it unnecessary to provide examples of each in this 11 order. Suffice it to say that, while the Federal Rules of Civil Procedure do not demand detailed 12 factual allegations, “a pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of 13 the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (quoting Twombly, 550 U.S. at 555). A complaint does not suffice “if it tenders ‘naked 15 assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). 16 An amended complaint, if plaintiff elects to file one, must specifically allege the wrongdoing 17 each defendant is accused of. 18 III. Leave to Amend 19 Plaintiff will be given leave to amend to address the deficiencies identified above. He is 20 cautioned that any amended complaint must identify as a defendant only persons who personally 21 participated in a substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 22 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional 23 right if he does an act, participates in another’s act or omits to perform an act he is legally 24 required to do that causes the alleged deprivation). Plaintiff may also include any allegations 25 based on state law that are so closely related to his federal allegations that “they form the same 26 case or controversy.” See 28 U.S.C. § 1367(a). 27 The amended complaint must also contain a caption including the names of all defendants. 28 Fed. R. Civ. P. 10(a). wOoOe 2:4 UV VEY BP UETIOCTIL ba POO PAY Tt
1 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 2 || George, 507 F.3d 605 at 607. 3 Any amended complaint must be written or typed so that it so that it is complete in itself 4 || without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 5 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 6 || earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 7 | F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 8 || being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 | 1967)). 10 Any amended complaint should be as concise as possible in fulfilling the above 11 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 12 || background which has no bearing on his legal claims. He should also take pains to ensure that his 13 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 14 | and organization. Plaintiff should carefully consider whether each of the defendants he names 15 || actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 16 || which plaintiff names dozens of defendants will not be looked upon favorably by the court. 17 Conclusion 18 Accordingly, it is ORDERED that 19 1. Plaintiff’s application to proceed in forma pauperis (ECF Nos. 5, 9) is GRANTED; 20 2. Plaintiff’ s complaints (ECF Nos. 1 & 10) are dismissed with leave to amend 21 || within 30 days from the date of service of this order; and 22 3. Failure to file an amended complaint that complies with this order may result in 23 || the dismissal of this action for the reasons stated herein. 24 || DATED: April 28, 2020.
> 26 EDMUND F. BRENNAN 57 UNITED STATES MAGISTRATE JUDGE