Don Martin v. City of Los Angeles et al
Filing
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MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Second Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty ( 30) days from the date of this Memorandum and Order within which to file a Third Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. P laintiff is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DON MARTIN,
Case No. CV 16-2655 TJH (SS)
Plaintiff,
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v.
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MEMORANDUM AND ORDER DISMISSING
SECOND AMENDED COMPLAINT WITH
CITY OF LOS ANGELES, et al.,
LEAVE TO AMEND
Defendants.
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I.
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INTRODUCTION
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On February 13, 2018, Plaintiff Don Martin (“Plaintiff”), a
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California resident proceeding pro se, filed a Second Amended
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Complaint, alleging violations of his civil rights pursuant to 42
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U.S.C. § 1983.
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City
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property
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occasions.
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of
Los
to
(“SAC,” Dkt. No. 28).
Angeles
be
and
various
unlawfully
(See SAC at 2-8).
seized
Plaintiff claims that the
city
employees
caused
and
destroyed
on
his
several
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Under
Federal
Rule
of
Civil
Procedure
12(b)(6),
a
trial
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court may dismiss a claim sua sponte “where the claimant cannot
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possibly win relief.”
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986, 991 (9th Cir. 1987); see also Baker v. Director, U.S. Parole
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Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (adopting
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the Ninth Circuit’s position in Omar and noting that such a sua
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sponte
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plaintiff’s rights and the efficient use of judicial resources”).
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When a plaintiff appears pro se in a civil rights case, the court
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must construe the pleadings liberally and afford the plaintiff
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the benefit of any doubt.
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Dep’t., 839 F.2d 621, 623 (9th Cir. 1988).
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interpretation to a pro se complaint, the court may not, however,
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supply essential elements of a claim that were not initially
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pled.
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268 (9th Cir. 1982).
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to amend the complaint unless it is “absolutely clear that the
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deficiencies of the complaint could not be cured by amendment.”
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Karim-Panahi, 839 F.2d at 623 (citation and internal quotations
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omitted).
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DISMISSED with leave to amend.1
dismissal
“is
Omar v. Sea-Land Serv., Inc., 813 F.2d
practical
and
fully
consistent
with
Karim-Panahi v. Los Angeles Police
In giving liberal
Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266,
For
the
A court must give a pro se litigant leave
reasons
stated
below,
the
Complaint
is
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//
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//
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//
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A magistrate judge may dismiss a complaint with leave to
amend without the approval of a district judge. See McKeever v.
Block, 932 F.2d 795, 798 (9th Cir. 1991).
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II.
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FACTUAL ALLEGATIONS AND CLAIMS
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Plaintiff sues the City of Los Angeles (“the City”) and
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several
city
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Martinez,
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attorney; Cline, a police officer; “Doe One,” a police officer;
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and “Does Two-Ten,” city public works employees.
a
employees
city
in
their
councilwoman;
individual
Tamar
capacities:
Galatzan,
a
Nury
deputy
city
(SAC at 2-4).
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Plaintiff claims that Martinez, Galatzan and Does One-Ten
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violated his Fourth Amendment and Due Process rights by causing
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his property to be taken and destroyed.
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alleges that this occurred at a homeless encampment on Bessemer
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Street in Van Nuys, California on April 1 and May 23, 2014.
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at
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clothing, bedding, and other necessities of life.”
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alleges that on December 17, 2015, at a different Van Nuys street
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corner, the same Defendants took away in a dump truck Plaintiff’s
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“electronic equipment, stationery, bicycles, food, etc.”
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6).
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orders, Doe One had Plaintiff’s 1995 Dodge truck towed away,
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though “the officer knew there was no parking violation and no
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registration
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relief.
5).
The
lost
property
included
violation.”
(Id.).
(Id. at 9).
//
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“legal
materials,
He
(Id.
food,
(Id.).
He
(Id. at
He further claims that on February 7, 2016, on Martinez’s
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(Id. at 2, 5-8).
//
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Plaintiff
seeks
monetary
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III.
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DISCUSSION
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A.
Plaintiff Fails To State A Claim Against The City
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Plaintiff
attempts
to
state
a
claim
against
the
City.
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However, municipal entities, such as the City, may only be sued
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for constitutional torts committed by their officials according
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to an official policy, practice, or custom.
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Monell v. Dep't of
Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978).
specifically
rejected
governmental
liability
based
Monell
on
the
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doctrine
of
respondeat
superior.
Id.
at
691-94.
Thus,
a
government body cannot be held liable under section 1983 merely
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because it employs a tortfeasor.
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suing the City, he must identify some official municipal policy
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pursuant to which the actions of its representatives caused the
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injuries complained of.
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Id.
Insofar as Plaintiff is
Id. at 690-91; Lytle v. Carl, 382 F.3d
978, 982 (9th Cir. 2004).
As the Ninth Circuit has found, “there
must be a ‘widespread practice.’”
Marsh v. Cty. of San Diego,
680 F.3d 1148, 1159 (9th Cir. 2012) (quoting Davis v. City of
Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989)).
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Here,
deprivations
Plaintiff
occurred
asserts
generally
“according
to
that
official
the
alleged
custom
and
practice,” and that “similar actions are carried out every week
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by the City.”
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any
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facts
to
(SAC at 2).
show
that
However, Plaintiff fails to allege
Defendants’
actions
are
part
of
any
ongoing policy of the City, rather than being merely isolated
incidents.
Accordingly, Plaintiff’s claims against the City are
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dismissed with leave to amend.
B.
Plaintiff
Fails
To
State
A
Claim
Against
The
Named
Individual Defendants
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Because vicarious liability is inapplicable to section 1983
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suits,
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defendant, through the official’s own individual actions, has
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violated the Constitution.”
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(2009).
The
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personal
participation
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between the official’s conduct and the alleged constitutional
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violation.
“a
plaintiff
must
plaintiff
plead
each
Government-official
Ashcroft v. Iqbal, 556 U.S. 662, 676
must
or
that
establish
“a
either
sufficient
the
causal
official’s
connection”
Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).
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Here, Plaintiff’s allegations against Martinez, Galatzan and
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Cline are conclusory and vague.
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Martinez “is responsible for orchestrating the seizures” of his
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property.
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“neighborhood
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deprivations of Plaintiff’s rights.”
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provide any facts showing how these Defendants orchestrated or
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set in motion the alleged deprivations.
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Officer
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false pretenses.”
(SAC
Cline
at
2).
prosecutor”
“order[ed]
He
for
He asserts that Councilwoman
states
the
seizures
(Id. at 3).
that
City,
Galatzan,
“set
in
(Id. at 3).
as
the
motion
the
He fails to
Moreover, he claims that
unlawfully
–
on
grounds
of
However, he omits Cline from the
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factual allegations, leaving no indication of what role Cline
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played in the incidents.
(See id. at 5-6).
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Absent
more
pled
specific
these
allegations,
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violating
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between any of their actions and any constitutional violations.
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Accordingly, Plaintiff’s claims against Martinez, Galatzan and
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Cline are dismissed with leave to amend.
rights
or
any
involvement
not
plausibly
civil
personal
has
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Plaintiff’s
Defendants’
Plaintiff
causal
in
connection
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C.
The Instant Complaint’s Remaining Allegations Fail To Comply
With Federal Rule of Civil Procedure 8
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Rule 8 requires that a pleading contain “a short and plain
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statement of the claim showing that the pleader is entitled to
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relief.”
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rather
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See Fed. R. Civ. P. 8.
than
a
blanket
Rule 8 requires a showing,
assertion,
of
entitlement
to
relief.
Factual allegations in a complaint satisfy the requirement of
providing
fair
notice
of
the
nature
grounds on which the claim rests.
of
the
claim,
Fed. R. Civ. P.
and
the
8(a)(2);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Here,
Plaintiff
does
not
allegations to satisfy Rule 8.
Martinez,
Galatzan
and
Does
provide
sufficient
factual
He claims, for example, that
Two-Ten
unjustifiably
personal property on three different occasions.
seized
his
(SAC at 5-6).
However, aside from the dates, street locations and types of
property seized, he fails to allege any facts about the nature of
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these incidents.
As such, Plaintiff’s allegations do not show
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that there are plausible grounds for relief, nor do they provide
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enough facts for Defendants to properly respond to the claims.
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Moreover, Plaintiff’s claims appear to rest partly on the
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right to be protected against unlawful search and seizure — a
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fact-specific
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(1989)
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Amendment requires a careful balancing of ‘the nature and quality
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of the intrusion on the individual’s Fourth Amendment interests’
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against
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(some internal quotation marks omitted).
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to satisfy Rule 8, he must state a cognizable legal theory for an
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unlawful
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there are plausible grounds for relief.
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Because the Second Amended Complaint fails to satisfy Rule 8, it
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is dismissed with leave to amend.
inquiry.
(whether
the
a
Graham
“seizure
countervailing
seizure,
v.
is
Connor,
reasonable
governmental
providing
490
applicable
U.S.
under
interests
386,
the
at
396
Fourth
stake”)
In order for Plaintiff
facts
that
demonstrate
Iqbal, 556 U.S. at 668.
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D.
Substitute True Names for “Doe” Defendants
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Plaintiff fails to plead the names of the Doe Defendants.
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Plaintiff is responsible for obtaining the full name of each
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defendant named in any amended complaint.
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result
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defendants.
in
dismissal
of
claims
against
Failure to do so will
these
seven
“Doe”
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Accordingly, if Plaintiff does not know the full names of
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the Doe Defendants, he must promptly investigate to determine the
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true name of the defendant.
Plaintiff may then substitute the
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full names of those defendants who are inadequately identified in
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the current Complaint.
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IV.
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CONCLUSION
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For the reasons stated above, the Second Amended Complaint
is dismissed with leave to amend.2
If Plaintiff still wishes to
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pursue this action, he is granted thirty (30) days from the date
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of this Memorandum and Order within which to file a Third Amended
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Complaint.
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defects
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defendants or new allegations that are not reasonably related to
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the
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Complaint, if any, shall be complete in itself and shall bear
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both
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number assigned to this action.
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to any prior complaint.
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In any amended complaint, Plaintiff shall cure the
described
claims
the
above.
asserted
in
designation
Plaintiff
prior
“Third
shall
complaints.
Amended
not
The
Complaint”
include
Third
and
new
Amended
the
case
It shall not refer in any manner
Plaintiff shall limit his action only to
Plaintiff has another pending civil rights action in this
Court, which he initiated in 2012.
(See CV 12-0315 TJH (SS)).
Plaintiff notes, in his Second Amended Complaint, that he intends
to seek leave in the 2012 action to amend his pleading to add the
claims from the instant case and then dismiss this case.
(See
SAC at 9).
However, Plaintiff previously moved to consolidate
the two cases on May 8, 2017, and the Court denied the motions on
June 16, 2017.
(See CV 12-0315 TJH (SS), Dkt. Nos. 72, 74; CV
16-2655-TJH (SS), Dkt. Nos. 17, 19).
The Court found that
consolidation was not in the interests of justice because,
despite some overlap in Defendants and time periods, the two
actions are not fully co-extensive and are at different stages of
litigation. (CV 12-0315 TJH (SS), Dkt. No. 74 at 3; CV 16-2655TJH (SS), Dkt. No. 19 at 3).
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those Defendants who are properly named in such a complaint,
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consistent
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reminds Plaintiff that it may be more efficient to seek to amend
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his Prior Complaint with related claims, as opposed to initiating
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an entirely new action.
with
the
authorities
discussed
above.
The
Court
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In
any
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allegations
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claims.
amended
to
complaint,
those
operative
Plaintiff
facts
should
supporting
confine
each
of
his
his
Plaintiff is advised that pursuant to Federal Rule of
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Civil Procedure 8(a), all that is required is a “short and plain
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statement of the claim showing that the pleader is entitled to
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relief.”
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standard
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complaint,
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complaint, Plaintiff should make clear the nature and grounds for
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each claim and specifically identify the Defendants he maintains
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are liable for that claim.
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for which he cannot allege a proper factual basis.
Plaintiff
civil
a
is
rights
copy
of
strongly
complaint
which
encouraged
form
is
when
to
filing
attached.
In
utilize
the
any
amended
any
amended
Plaintiff shall not assert any claims
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Plaintiff is explicitly cautioned that failure to timely
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file
a
Third
Amended
Complaint,
or
failure
to
correct
the
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deficiencies described above, will result in a recommendation
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that this entire action be dismissed with prejudice for failure
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to prosecute and obey Court orders pursuant to Federal Rule of
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Civil Procedure 41(b).
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Plaintiff is further advised that if he no longer wishes to
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pursue this action, he may voluntarily dismiss it by filing a
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Notice of Dismissal in accordance with Federal Rule of Civil
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Procedure 41(a)(1).
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Plaintiff’s convenience.
A form Notice of Dismissal is attached for
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DATED:
March 12, 2018
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/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
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THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT
INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE
SUCH AS WESTLAW OR LEXIS.
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