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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DONALD CRAWFORD,

Plaintiff, 

vs. CIV S-04-2452 WBS KJM PS

WE HALL, et al.,

Defendants. ORDER

 /

Plaintiff is proceeding in this action pro se and in forma pauperis. By order filed

December 27, 2004, plaintiff’s complaint was dismissed with leave to amend. Although plaintiff

has filed numerous pleadings since that time, none of those documents complies with the

December 27, 2004 order. 

The federal in forma pauperis statute authorizes federal courts to dismiss a case if

the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(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. 

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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). 

The court will construe the pleadings filed since the court’s December 27, 2004 as

an amended complaint. Construed as such, the court finds the allegations in plaintiff's amended

complaint so vague and conclusory that it is unable to determine whether the current action is

frivolous or fails to state a claim for relief. The court has determined that the complaint does not

contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). 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. Because plaintiff has failed to comply

with the requirements of Fed. R. Civ. P. 8(a)(2), the amended complaint must be dismissed. The

court will, however, grant leave to file a second amended complaint.

As a model for drafting such a document, plaintiff is directed to McHenry v.

Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). There, the Ninth Circuit Court of Appeal upheld the

dismissal of a complaint it found to be “argumentative, prolix, replete with redundancy, and

largely irrelevant. It consists largely of immaterial background information.” It observed that the

Federal Rules require that a complaint consist of “simple, concise, and direct” averments. Id. As

a model of concise pleading, the court quoted the standard form negligence complaint from the

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Appendix to the Federal Rules of Civil Procedure:

1. Allegation of jurisdiction.

2. On June 1, 1936, in a public highway, called Boylston Street, in

Boston Massachusetts, defendant negligently drove a motor vehicle

against plaintiff, who was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken,

and was otherwise injured, was prevented from transacting his

business, suffered great pain of body and mind, and incurred

expenses for medical attention and hospitalization in the sum of

one thousand dollars.

Wherefore plaintiff demands judgment against defendant in the

sum of one thousand dollars.

Id. 

Phrased another way, “Vigorous writing is concise.” William Strunk, Jr. & E.B.

White, The Elements of Style, § III, ¶ 13 <http://www.bartleby.com/141>. Accordingly, any

amended complaint should not exceed twenty pages.

If plaintiff chooses to amend the complaint, plaintiff must set forth the

jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil

Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted

in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 

In addition, plaintiff once again 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. 

/////

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

1. Plaintiff's filings, docketed as numbers 8-10, 12-18 and 20, and construed as an

amended complaint, are 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 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"; plaintiff must file

an original and two copies of the 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: May 3, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

006

crawford2.lta

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