1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VAGEN VARDAZARYAN, No. 2: 19-cv-2157 KJN P 12 Plaintiff, 13 v. ORDER 14 R. BREEN, et al., 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 23 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing 24 fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will 25 direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account 26 and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 27 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 15 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 16 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 17 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 19 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 23 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 24 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 25 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 26 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 27 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 28 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 1 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 2 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 3 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 4 Named as defendants are Correctional Officers Breen and Brinton and Correctional 5 Sergeant Snyder. Plaintiff alleges that he told all defendants that his cellmate was going to attack 6 him. Plaintiff alleges that defendants denied his request for a cell move. Plaintiff alleges that 7 defendants’ denial of his request for a cell move away from his cellmate caused him to suffer 8 serious injuries, including permanent loss of vision in his right eye. 9 Prison officials have a duty to protect prisoners from violence at the hands of other 10 prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). The failure of prison officials to protect 11 inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation 12 when: (1) the deprivation alleged is “objectively, sufficiently serious” and (2) the prison officials 13 had “a sufficiently culpable state of mind,” acting with deliberate indifference. Farmer, 511 U.S. 14 at 834. “[D]eliberate indifference entails something more than mere negligence … [but] is 15 satisfied by something less than acts or omissions for the very purpose of causing harm or with 16 knowledge that harm will result. Id. at 835. The prison official must “know and disregard an 17 excessive risk to inmate health or safety.” Id. 18 Plaintiff appears to claim that his cellmate attacked him after defendants denied his 19 request for a cell move. However, plaintiff does not allege when or where this attack occurred, or 20 when he had notified defendants of his concerns. Plaintiff also does not describe any other 21 circumstances of the attack. Without knowing when and where the attack occurred, the 22 undersigned cannot determine whether plaintiff has stated a potentially colorable Eighth 23 Amendment claim against defendants. For these reasons, plaintiff’s complaint is dismissed with 24 leave to amend. 25 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 26 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g., 27 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 28 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 1 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 2 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 3 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 4 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 5 268 (9th Cir. 1982). 6 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 7 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 8 complaint be complete in itself without reference to any prior pleading. This requirement exists 9 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 10 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 11 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 12 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 13 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 14 and the involvement of each defendant must be sufficiently alleged. 15 In accordance with the above, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 17 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 18 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 19 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 20 Director of the California Department of Corrections and Rehabilitation filed concurrently 21 herewith. 22 3. Plaintiff’s complaint is dismissed. 23 4. Within thirty days from the date of this order, plaintiff shall complete the attached 24 Notice of Amendment and submit the following documents to the court: 25 a. The completed Notice of Amendment; and 26 b. An original and one copy of the Amended Complaint. 27 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 28 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 1 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 2 Failure to file an amended complaint in accordance with this order may result in the 3 | dismissal of this action. 4 | Dated: October 31, 2019 Frese Arn 6 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

7 8 Vard2157.14 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VAGEN VARDAZARAYAN, No. 2: 19-cv-2157 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 R. BREEN, et al., 15 Defendant. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint

DATED:

21 ________________________________ Plaintiff 22 23 24 25 26 27 28