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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

PERCY BRADLEY,

Plaintiff, No. CIV S-04-2033 MCE DAD P

vs.

CAPTAIN LEA, et al.,

Defendants. 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 72-302 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 $150.00 for this action. 28

U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $14.83 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

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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).

On December 27, 2004, plaintiff filed an amended complaint which supercedes

the complaint plaintiff filed on September 28, 2004. 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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 Plaintiff is also advised that prison inmates do not have a constitutional right to be

incarcerated at a particular correctional facility or to be transferred from one facility to another. 

See Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Therefore, it is unlikely that the court

would order an institution to transfer plaintiff to a particular facility. 

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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. 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. 

Plaintiff alleges that his mail has not been forwarded to the court which has

caused plaintiff to miss deadlines. Plaintiff seeks a court order that he be transferred to another

facility. To the extent that plaintiff is alleging violation of his Fourteenth Amendment right of

access to the courts, plaintiff is advised that must demonstrate an actual injury. Lewis v. Casey,

518 U.S. 343, 349 (1996). To demonstrate "actual injury," plaintiff must show that he "could not

present a claim to the courts because of the state's failure to fulfill its constitutional obligations." 

Allen v. Sakai, 48 F.3d 1082, 1091 (9th Cir. 1995). For example, in order to state a cognizable

claim in this regard plaintiff should provide allegations showing a connection between the

defendants’ failure to mail his legal mail and the dismissal of his case or some other actual harm

suffered by plaintiff.1

In addition, plaintiff has not made specific allegations concerning any of the

named defendants. In his second amended complaint, plaintiff 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. 

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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).

Lastly, plaintiff is informed that the court cannot refer to prior pleadings in order

to make plaintiff's second amended complaint complete. Local Rule 15-220 requires that a

second amended complaint be complete in itself without reference to any prior pleadings. 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 his second amended complaint, the

prior pleadings no longer serves any function in the case. Therefore, in his second amended

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

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 $14.83. All fees shall be collected and paid in

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

filed concurrently herewith.

3. Plaintiff's amended complaint, filed on December 27, 2004, is dismissed. 

4. 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; plaintiff must use the form

complaint provided by the court; 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.

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5. The Clerk of the Court is directed to send plaintiff a copy of the court’s form

complaint for a 1983 action.

DATED: April 28, 2005.

DAD:4

brad2033.14

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