1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DUANE HICKMAN, No. 2: 23-cv-0755 KJN P 12 Plaintiff, 13 v. ORDER 14 UNKNOWN, 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 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 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 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 16 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 17 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 23 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 24 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 25 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 27 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 28 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 1 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 2 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 3 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 4 In the complaint, plaintiff fails to name any defendant. Plaintiff alleges that he, plaintiff, 5 defaulted in case no. 2:10-cr-00246. Plaintiff alleges that he, plaintiff, “went into default so as 6 the authorize representative/secured party responsibility to seek full settlement on all accounts.” 7 As relief, plaintiff states that he wants to settle the account. Attached to plaintiff’s complaint as 8 exhibits are various documents including, but not limited to, documents titled “Release of Lien on 9 Real Property,” “Bid Bond,” “Payment Bond,” and “Reinsurance Agreement for a Bond Statute 10 Payment Bond.” 11 The grounds of plaintiff’s complaint are not clear. In case 2:10-cr-00246, plaintiff plead 12 guilty to possession of stolen United States mail.1 (2:10-cr-00246 at ECF No. 34.) If plaintiff’s 13 claims raised in the instant action concern 2:10-cr-00246, these claims should be raised in case 14 2:10-cr-00246. Because the undersigned does not understand plaintiff’s claims nor the relief 15 sought, the complaint is dismissed with leave to amend. 16 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 17 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 18 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 19 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 20 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 21 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 22 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 23 participation in civil rights violations are not sufficient. Ivey v. Bd.
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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 KEVIN DUANE HICKMAN, No. 2: 23-cv-0755 KJN P 12 Plaintiff, 13 v. ORDER 14 UNKNOWN, 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 Accordingly, the request to proceed in forma pauperis is granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 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 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 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 16 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 17 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 23 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 24 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 25 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 27 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 28 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 1 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 2 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 3 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 4 In the complaint, plaintiff fails to name any defendant. Plaintiff alleges that he, plaintiff, 5 defaulted in case no. 2:10-cr-00246. Plaintiff alleges that he, plaintiff, “went into default so as 6 the authorize representative/secured party responsibility to seek full settlement on all accounts.” 7 As relief, plaintiff states that he wants to settle the account. Attached to plaintiff’s complaint as 8 exhibits are various documents including, but not limited to, documents titled “Release of Lien on 9 Real Property,” “Bid Bond,” “Payment Bond,” and “Reinsurance Agreement for a Bond Statute 10 Payment Bond.” 11 The grounds of plaintiff’s complaint are not clear. In case 2:10-cr-00246, plaintiff plead 12 guilty to possession of stolen United States mail.1 (2:10-cr-00246 at ECF No. 34.) If plaintiff’s 13 claims raised in the instant action concern 2:10-cr-00246, these claims should be raised in case 14 2:10-cr-00246. Because the undersigned does not understand plaintiff’s claims nor the relief 15 sought, the complaint is dismissed with leave to amend. 16 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 17 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 18 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 19 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 20 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 21 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 22 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 23 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 24 268 (9th Cir. 1982). 25 //// 26
27 1 The undersigned takes judicial notice of the court record in case 2:10-cr-00246. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (court may take judicial notice of matters of 28 public record). ] In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 2 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 3 || complaint be complete in itself without reference to any prior pleading. This requirement exists 4 || because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 5 || v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 6 || supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 7 || omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 8 | function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 9 || 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 1s granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 13 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 14 | § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 15 || Director of the California Department of Corrections and Rehabilitation filed concurrently 16 || herewith. 17 3. Plaintiff's complaint is dismissed. 18 4. Within thirty days from the date of this order, plaintiff shall complete the attached 19 || Notice of Amendment and submit the following documents to the court: 20 a. The completed Notice of Amendment; and 21 b. An original of the Amended Complaint. 22 || Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 23 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 24 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 25 Failure to file an amended complaint in accordance with this order may result in the 26 || dismissal of this action. 27 || Dated: May 11, 2023 Hick755.14 Foci) Aharon ‘ KENDALL J.NE TINTITED STATES MA CTETE ATE TINncEe
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 KEVIN DUANE HICKMAN, No. 2: 23-cv-0755 KJN P 9 Plaintiff, 10 v. NOTICE OF AMENDMENT 11 UNKNOWN, 12 Defendants. 13 14 Plaintiff hereby submits the following document in compliance with the court’s order 15 filed______________. 16 _____________ Amended Complaint DATED: 17
18 ________________________________ Plaintiff 19
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