Opinion
No. CIV S-07-0509 DFL EFB P.
April 10, 2007
ORDER
Plaintiff is a state prisoner without counsel suing under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff's declaration makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). He must pay the $350 filing fee. See 28 U.S.C. §§ 1914(a), 1915(b)(1). To that end, he must make monthly payments of 20 percent of the preceding month's income credited to his trust account. See 28 U.S.C. § 1915(b)(2). The agency having custody of plaintiff shall forward payments from plaintiff's account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fee is paid.
The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states a cognizable claim against defendant Justin. See 28 U.S.C. § 1915A.
The complaint does not state a cognizable claim against defendant Clayton. Plaintiff alleges in his complaint that "on 9-16-05 at about 11:30 AM, I was asked to be hand cuffed by C/O Clayton . . . to be escorted to his sergeant Justin's office. . . . I ask C/O Clayton why did Sergent Justin want to see me. C/O Clayton stated that he didn't know." The complaint alleges that defendant Justin questioned plaintiff about his single-cell classification and then asked defendant Clayton to step out of the office. It is further alleged that when defendant Clayton left defendant Justin assaulted plaintiff, still in handcuffs, and then opened the office door and "tossed" plaintiff to defendant Clayton, who escorted plaintiff back to his cell. These facts are insufficient to state a claim against defendant Clayton.
Plaintiff may proceed forthwith to serve defendant Justin and pursue his claims against only that defendant, or he may delay serving that defendant and attempt to state a cognizable claim against defendant Clayton by filing an amended complaint.
If plaintiff elects to attempt to amend his complaint to state a cognizable claim against defendant Clayton, he has 30 days so to do. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. He is not obligated to amend his complaint.
If plaintiff elects to proceed forthwith against defendant Justin, against whom he has stated a cognizable claim for relief, then within 20 days he must return materials for service of process enclosed herewith. In this event the court will construe plaintiff's election as consent to dismissal of all claims against defendant Clayton without prejudice.
An amended complaint must be complete in itself without reference to any prior pleading. Local Rule 15-220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading is superseded. An amended complaint will therefore need to restate the claim against defendant Justin in addition to stating a claim against defendant Clayton.
By signing a first amended complaint plaintiff certifies he has made reasonable inquiry and has evidentiary support for his allegations and that for violation of this rule the court may impose sanctions sufficient to deter repetition by plaintiff or others. Fed.R.Civ.P. 11.
Accordingly, the court hereby orders that:
1. Plaintiff's request to proceed in forma pauperis is granted.
2. Plaintiff must pay the statutory filing fee of $350 for this action. All payments shall be collected and paid in accordance with the notice to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. The claim against defendant Clayton is dismissed with leave to amend. Within 30 days of service of this order, plaintiff may amend his complaint to attempt to state cognizable claims against this defendant. Plaintiff is not obliged to amend his complaint.
4. The allegations in the pleading are sufficient at least to state a cognizable claim against defendant Justin. See 28 U.S.C. § 1915A. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a copy of the pleading filed March 15, 2007, one USM-285 form and instructions for service of process on defendant Justin. Within 20 days of service of this order plaintiff may return the attached Notice of Submission of Documents with the completed summons, the completed USM-285 forms, and 2 copies of the March 15, 2007, complaint. The court will transmit them to the United States Marshal for service of process pursuant to Fed.R.Civ.P. 4. Defendant Justin will be required to respond to plaintiff's allegations within the deadlines stated in Fed.R.Civ.P. 12(a)(1). In this event, the court will construe plaintiff's election to proceed forthwith as consent to an order dismissing his defective claim against defendant Clayton without prejudice.