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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BRADY ARMSTRONG,

Plaintiff, No. CIV S-04-1269 GEB KJM P

vs.

SILVIA GARCIA, et al.,

Defendants. ORDER

 /

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief under 42

U.S.C. § 1983 and has requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. 

This proceeding was referred to this court by Local Rule 72-302 under 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 in effect at the time of filing of

this action, $150.00. 28 U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $7.15 will

be assessed by this order. 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. 

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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.

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). 

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The court finds the allegations in plaintiff's complaint too vague and conclusory to

state a valid claim for relief. Although the Federal Rules of Civil Procedure 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. Plaintiff’s complaint must be dismissed. The court will, however,

grant leave to file an amended complaint.

It appears plaintiff alleges he has been denied access to courts, through the

retaliatory withholding of legal documents, in violation of the First Amendment. Plaintiff is

informed that the law with respect to an inmate’s right to access to courts was discussed in detail

by the United States Supreme Court in Lewis v. Casey, 518 U.S. 343 (1996); see also Vandelft v.

Moses, 31 F.3d 794, 797 (9th Cir. 1994). Most importantly in Lewis, the court held that for a

prisoner to be successful on a denial of access to courts claim, he must show not only denial of

access, but also injury resulting from the denial of access; “the inmate . . . must . . . demonstrate

that the alleged shortcomings in the [prison’s law] library or legal assistance program hindered

his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351. “He might show, for example, that a 

complaint he prepared was dismissed for failure to satisfy some technical requirement which,

because of deficiencies in the prison's legal assistance facilities, he could not have known. Or

that he had suffered arguably actionable harm that he wished to bring before the courts, but was

so stymied by inadequacies of the law library that he was unable even to file a complaint.” Id.

Plaintiff also appears to allege an Eighth Amendment violation based on denial of

appropriate medical care. Such a violation occurs if a prison official demonstrates deliberate

indifference to an inmate’s serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A

serious medical need exists where failure to treat a condition could result in further significant

injury or the “unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050,

1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d

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1133 (9th Cir. 1997). A serious medical need is usually one that significantly impacts daily

activities or results in chronic and substantial pain. Id.

If plaintiff chooses to amend the 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 amended complaint complete. Local Rule 15-220 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 an amended complaint, the original

pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

original complaint, each claim and the involvement of each defendant must be sufficiently

alleged. 

Plaintiff also has requested that the court order that plaintiff be provided with

access to his prison’s law library. Plaintiff’s request will be denied as plaintiff has not indicated

why he needs access to the library.

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 $150.00 for this action. 

Plaintiff is assessed an initial partial filing fee of $7.15. All fees shall be collected and paid in

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accordance with this court’s order to the Director of the California Department of Corrections

filed concurrently herewith.

3. Plaintiff's complaint is dismissed. 

4. Plaintiff is granted thirty days from the date of service of this order to file an

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 amended complaint must bear the

docket number assigned this case and must be labeled “Amended Complaint”; plaintiff must file

an original and two copies of the amended complaint; failure to file an amended complaint in

accordance with this order will result in a recommendation that this action be dismissed.

5. Plaintiff’s September 20, 2004 request for an order directing officials at High

Desert State Prison to grant plaintiff access to the prison law library is denied.

DATED: May 17, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

1

arms1269.14

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