(PC) Stribling v. Britton

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA AARON LAMONT STRIBLING, No. 2:18-cv-0870-KJM-EFB P 12 Plaintiff, 13 v. ORDER GRANTING IFP AND DISMISSING COMPLAINT WITH LEAVE TO AMEND BRITTON, PURSUANT TO 28 U.S.C. § 1915A 15 Defendant.

17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He has filed an application for leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. ECF No. 4.

20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b).

4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009).

12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678.

17 Furthermore, a claim upon which the court can grant relief must have facial plausibility.

18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

24 Screening Order 25 Plaintiff alleges that defendant Britton failed to send out plaintiff’s legal mail on three occasions: March 10, 2016; March 20, 2016, and April 10, 2016. ECF No. 1 at 4. He claims to know that Britton failed to send out his mail because she “signed her signature that she did,” yet a “mail print out” shows that the mail was not sent. Id., Exs. A, B & C. Plaintiff claims that one of the pieces of mail was a complaint for the “Stockton Superior Court,” and that Britton’s failure to mail it caused him to lose “potentially millions of dollars [had he been] the prevailing party.” Id. 3 Plaintiff’s allegations are too speculative and vague to survive screening. Britton’s signature, as shown on the complaint’s exhibits on which plaintiff relies, shows only that Britton received plaintiff’s requests for a “receipt of filing.” Id., Exs. A, B & C. The signature does not indicate that Britton bore any responsibility for actually depositing plaintiff’s documents in the mail. Id. Thus, plaintiff’s claim against Britton appears to be entirely speculative. Further, if plaintiff wishes to assert a First Amendment claim based on denial of access to the courts, he must plead specific facts showing that Britton actually injured his litigation efforts, in that the she hindered his efforts to bring, or caused him to lose, an actionable claim challenging his criminal sentence or conditions of confinement. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). For these reasons, the complaint must be dismissed with leave to amend.

14 Leave to Amend 15 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable legal theory against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

19 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the claims and allegations against each defendant.

21 Any amended complaint must not exceed the scope of this order and may not add new, unrelated claims. Further, any amended complaint must cure the deficiencies identified above and also adhere to the following requirements: 24 Any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another’s act or omits to perform an act he is ///// | legally required to do that causes the alleged deprivation). It must also contain a caption || including the names of all defendants. Fed. R. Civ. P. 10(a).

3 Any amended complaint must be written or typed so that it so that it is complete in itself | without reference to any earlier filed complaint. L.R. 220. This is because an amended || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the || earlier filed complaint no longer serves any function in the case. See Forsyth vy. Humana, 114 | F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter || being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. | 1967)).

10 Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil | Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

12 | See Local Rule 110.

13 Conclusion 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 4) is granted.

16 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 17 in accordance with the notice to the California Department of Corrections and 18 Rehabilitation filed concurrently herewith.

19 3. The complaint is dismissed with leave to amend within 30 days from the date of 20 service of this order.

21 4. Failure to file an amended complaint that complies with this order may result in the 22 dismissal of this action for the reasons stated herein.

23 | DATED: February 11, 2020.

24 tid, PDEA EDMUND F. BRENNAN 25 UNITED STATES MAGISTRATE JUDGE