Opinion
No. 2:15-cv-1614 MCE CKD P
03-17-2016
GRANVILLE WILLIAM SMITH, Plaintiff, v. T. HERNANDEZ, Defendants.
ORDER
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff's amended complaint is now before the court.
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.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
After conducting the required screening, the court finds that plaintiff's amended complaint fails to state a claim upon which relief can be granted. Plaintiff seeks monetary damages based upon allegations that eleven defendants placed false information in his prisoner central file indicating that he is a member of a gang. Plaintiff asserts this has caused him to "defend himself." These allegations are simply too vague as plaintiff fails to provide any specific facts in the body of his complaint describing the actions of any defendant and how those actions caused him any legally-actionable injury. The court has surmised from the exhibits attached to plaintiff's complaint that it is at least possible that plaintiff's claims stem from the fact that on April 26, 2006, defendant Kirkland issued a report that reads as follows:
On Wednesday, April 26, 2006, at approximately 2130 hours you Inmate SMITH K68945 refused to move into a cell with another black inmate. You said you would live with a peaceful non-affiliated black. You claim to be a PIRU and said you will only house with the like wise inmates. Based in the aforementioned, you are deemed a threat to the safety and security of the institution and will be retained in [administrative segregation] Pending Case Review. . .///// However, the statute of limitations applicable to this action is two years, with two years of tolling when a litigant is incarcerated. Accordingly, any claims arising from something that happened in 2006 are most likely time barred.
The forum state's statute of limitations for personal injury actions applies to actions brought under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 265 (1985). The statute of limitations for civil actions filed in California is two years, as set forth at California Civil Procedure Code Section 335.1, which is the applicable statute in § 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). The federal court also applies the forum state's law regarding tolling, including equitable tolling when not in conflict with federal law. Hardin v. Straub, 490 U.S. 536, 537-39 (1989). California provides that the applicable limitations period is tolled for two years on grounds of "disability" when a litigant is incarcerated. Cal. Code Civ. P. § 352.1(a). --------
For all of these reasons, plaintiff amended complaint will be dismissed. Plaintiff will be granted leave to amend one final time to attempt to state a claim upon which relief can be granted.
Any claims presented in the second amended complaint should not violate the limitations period applicable to this action. Also, as plaintiff has already been informed, 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 federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended 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).
Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's second amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior 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 a second amended complaint, the original pleading no longer serves any function in the case. Therefore, in a second amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. All allegations of fact must be included in the body of the second amended complaint. While exhibits may be attached, they are generally not necessary and the court will not scour pages of exhibits in order to piece together a claim upon which plaintiff might proceed.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's amended complaint is dismissed; and
2. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint that complies 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 a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed. Dated: March 17, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1
smit1614.14a