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United States District Court

Eastern District of California 

Delonzo Gallon,

Plaintiff, No. Civ. S 04-2422 MCE PAN P

vs. Order

D. L. Runnels, et al.,

Defendants.

-oOoPlaintiff is a state prisoner without counsel prosecuting a

civil rights action. He seeks leave to proceed in forma

pauperis. This proceeding was referred to this court by Local

Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). 

Plaintiff’s declaration makes the showing required by 28

U.S.C. § 1915(a)(1) and (2).

Pursuant to 28 U.S.C. § 1915(b)(1), plaintiff must pay the

$150 filing fee required by 28 U.S.C. § 1914(a) (2000). 

Plaintiff must make monthly payments of 20 percent of the 

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preceding month’s income credited to his trust fund account. 28

U.S.C. § 1915(b)(2). The agency having custody of plaintiff

shall forward payments from plaintiff’s account to the clerk of

the court each time the amount in the account exceeds $10 until

the filing fee is paid. 

I have reviewed plaintiff’s complaint pursuant to 28 U.S.C.

§ 1915A and find it does not state a cognizable claim against any

defendant. The complaint is dismissed with leave to amend.

Any amended complaint must show the federal court has

jurisdiction and that plaintiff’s action is brought in the right

place, that plaintiff is entitled to relief if plaintiff’s

allegations are true, and must contain a request for particular

relief. Plaintiff must identify as a defendant only persons who

personally participated in a substantial way in depriving

plaintiff 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). If

plaintiff contends he was the victim of a conspiracy, he must

identify the participants and allege their agreement to deprive

him of a specific federal constitutional right. 

In an amended complaint, the allegations must be set forth

in numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may

join multiple claims if they are all against a single defendant. 

Fed. R. Civ. P. 18(a). If plaintiff has more than one claim

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based upon separate transactions or occurrences, the claims must

be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

The federal rules contemplate brevity. See Galbraith v.

County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002)

(noting that “nearly all of the circuits have now disapproved any

heightened pleading standard in cases other than those governed

by Rule 9(b).”); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth

rare exceptions to simplified pleading).

Plaintiff’s claims must be set forth in short and plain

terms, simply, concisely and directly. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting

point of a simplified pleading system, which was adopted to focus

litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 

Plaintiff must eliminate from plaintiff’s pleading all

preambles, introductions, argument, speeches, explanations,

stories, griping, vouching, evidence, attempts to negate possible

defenses, summaries, and the like. McHenry v. Renne, 84 F.3d

1172 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for

violation of Rule 8 after warning); see Crawford-El v. Britton,

523 U.S. 574, 597 (1998) (reiterating that “firm application of

the Federal Rules of Civil Procedure is fully warranted” in

prisoner cases).

A district court must construe pro se pleading “liberally”

to determine if it states a claim and, prior to dismissal, tell a

plaintiff of deficiencies in his complaint and give plaintiff an

opportunity to cure them. Noll v. Carlson, 809 F.2d 1446 (9th

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Cir. 1986).

It is sufficient, for example, for a prisoner who claims his

Eighth Amendment guarantee against cruel and unusual punishment

has been violated by inadequate medical care to allege that on a

specific day an identified state actor with individual

responsibility for obtaining or providing medical care knew the

prisoner faced substantial risk of serious harm but deliberately

disregarded the risk by failing to take reasonable measures

resulting in avoidable persistent severe pain or avoidable

substantial personal injury. 

The court (and defendant) should be able to read and

understand plaintiff’s pleading within minutes. McHenry, supra. 

A long, rambling pleading, including many defendants with

unexplained, tenuous or implausible connection to the alleged

constitutional injury or joining a series of unrelated claims

against many defendants very likely will result in delaying the

review required by 28 U.S.C. § 1915 and an order dismissing

plaintiff’s action pursuant to Fed. R. Civ. P. 41 for violation

of these instructions. 

An amended complaint must be complete in itself without

reference to any prior pleading. Local Rule 15-220; see Loux v.

Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an

amended complaint, the original pleading is superseded.

Plaintiff is admonished that by signing an amended complaint

he certifies he has made reasonable inquiry and has evidentiary

support for his allegations and that for violation of this rule

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the court may impose sanctions sufficient to deter repetition by

plaintiff or others. Fed. R. Civ. P. 11. Prison rules require

plaintiff to obey all laws, including this one, and plaintiff may

be punished by prison authorities for violation of the court’s

rules and orders. See 15 Cal. Admin. Code § 3005.

Title 42 of the United States Code § 1997e(a) provides a

prisoner may bring no § 1983 action until he has exhausted such

administrative remedies as are available to him. The requirement

is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). 

Plaintiff is further admonished that by signing an amended

complaint he certifies his claims are warranted by existing law,

including the law that he exhaust administrative remedies, and

that for violation of this rule plaintiff risks dismissal of his

action.

Accordingly, the court hereby orders that:

1. Plaintiff’s request to proceed in forma pauperis is

granted. 

2. Plaintiff is obligated to pay the statutory filing fee

of $150 for this action. The fee shall be collected in

accordance with the notice to the Director of the California

Department of Corrections filed concurrently herewith. 

3. The complaint is dismissed with leave to amend within 45

days. Failure to file an amended complaint will result in a

recommendation this action be dismissed for failure to state a

claim. If plaintiff files an amended complaint stating a

cognizable claim the court will proceed with service of process

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by the United States Marshal. 

So ordered.

Dated: June 2, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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