From Casetext: Smarter Legal Research

Nelson v. Dickinson

United States District Court, E.D. California
Dec 3, 2010
No. 2:10-cv-2156 JFM (PC) (E.D. Cal. Dec. 3, 2010)

Opinion

No. 2:10-cv-2156 JFM (PC).

December 3, 2010


ORDER


Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Plaintiff filed his original complaint in this action on August 11, 2010. On September 2, 2010, plaintiff filed another complaint, accompanied by a letter asking whether, pursuant to Local Rule 132, he could join two distinct claims in one action. Finally, on October 20, 2010, plaintiff filed a motion for leave to include a prayer for nominal and compensatory damages.

Plaintiff is informed that "[w]hich claims are joined in a given . . . lawsuit . . . is largely up to the plaintiff." Lira v. Herrera, 427 F.3d 1164, 1174 (9th Cir. 2005). He may, therefore, bring distinct claims in this action. Similarly, plaintiff may include a prayer for nominal and compensatory damages. Plaintiff must, however, raise all of his claims and include all of his prayers for relief in one pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in the operative pleading in this action each claim and the involvement of each defendant must be sufficiently alleged, and the prayer for relief must include all relief that plaintiff seeks in this action.

Plaintiff does not require leave of court to include these prayers for relief. His motion will be construed as a motion for leave to amend his complaint to include such prayers and, so construed, will be granted.

Good cause appearing, plaintiff's original and first amended complaints will be dismissed and plaintiff will be given a period of thirty days in which to file a second amended complaint that raises all claims and includes all prayers for relief sought by this action. If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's second amended complaint complete. See Local Rule 220 (an amended complaint must be complete in itself without reference to any prior pleading.)

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

3. Plaintiff's October 20, 2010 motion is construed as a motion for leave to amend and, so construed, is granted.

4. Plaintiff's original and first amended complaints are dismissed.

5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court:

a. The completed Notice of Amendment; and
b. An original and one copy of the Second Amended Complaint.

Plaintiff's second amended complaint shall be completed on the form provided with this order and shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint"; failure to file an amended complaint in accordance with this order may result in the dismissal of this action.

6. The Clerk of the Court is directed to send plaintiff the court's form civil rights complaint and accompanying instructions.

DATED: December 2, 2010.

NOTICE OF AMENDMENT

Plaintiff hereby submits the following document in compliance with the court's order filed __________________:

______________ Second Amended Complaint DATED: _________________________________ Plaintiff


Summaries of

Nelson v. Dickinson

United States District Court, E.D. California
Dec 3, 2010
No. 2:10-cv-2156 JFM (PC) (E.D. Cal. Dec. 3, 2010)
Case details for

Nelson v. Dickinson

Case Details

Full title:DYKE EDWARD NELSON, Plaintiff, v. KATHLEEN DICKINSON, Warden, et al.…

Court:United States District Court, E.D. California

Date published: Dec 3, 2010

Citations

No. 2:10-cv-2156 JFM (PC) (E.D. Cal. Dec. 3, 2010)