Ikey Porter Currey v. K. Seibel, et al.

Filing 23

ORDER TO SHOW CAUSE Re: Lack of Prosecution by Magistrate Judge Alka Sagar. Plaintiff is ORDERED TO SHOW CAUSE, in writing, no later than June 2, 2017, why this action should not be dismissed with prejudice for failure to prosecute. (See Order for complete details) (Attachments: # 1 Courts February 21, 2017 Order, # 2 Civil Rights Complaint (Blank), # 3 Notice of Dismissal (Blank)) (afe)

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8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

) No. CV 16-4491 JLS (AS)
)
) ORDER DISMISSING SECOND AMENDED
Plaintiff,
)
v.
)
K. SEIBEL, Official Capacity as ) COMPLAINT WITH LEAVE TO AMEND
)
Associate Warden, et al.,
)
)
Defendants.
)
IKEY PORTER CURRY,

11
12
13
14
15
16

INTRODUCTION

17
18
19

On June 21, 2016, Plaintiff Ikey Porter Curry, a prisoner at the

20

California State Prison, Los Angeles County, in Lancaster, California

21

(“CSP-LAC”), filed a pro se civil rights Complaint pursuant to 42

22

U.S.C. § 1983.

23

Court had screened the Complaint, Plaintiff filed a First Amended

24

Complaint.

25

Court dismissed the First Amended Complaint with leave to amend.

26

(Docket Entry No. 8).

(Docket Entry No. 1).

On July 14, 2016, before the

(Docket Entry No. 5 (“FAC”)).

27
28
1

On September 8, 2016, the

On

1

December

29,

2016,

Plaintiff

filed

the

operative

Second

2

Amended Complaint in this action.

3

Plaintiff names as Defendants: (1) K. Seibel, an Associate Warden at

4

the Richard J. Donovan Correctional Facility (“RJD”) in San Diego,

5

California; (2) several John Doe correctional officers assigned to

6

deliver

7

Coalinga, California; (3) Debbie Asuncion, the Warden at CSP-LAC;

8

(4) Xavier

9

correctional officers Carter, Flores, and Marin; and (6) Director of

the

mail

Cano,

at

Pleasant

the

M.D.

Acting

Steiner.

(Docket Entry No. 17 (“SAC”)).

Valley

Warden

8-9).1

(5)

in

CSP-LAC

Plaintiff

sues

11

Seibel,

12

official and individual capacities and does not specify what capacity

13

he sues the other Defendants in.

14

alleges that Defendants confiscated or mis-delivered his mail.

15

at 10-11).

Carter,

3-4,

CSP-LAC;

(“PVSP”)

Corrections

Cano,

at

at

Prison

10

Asuncion,

(SAC

State

Flores,

and

(Id.).

Marin

in

both

their

Plaintiff principally
(Id.

16

The

17

Court

has

screened

the

Second

Amended

Complaint

as

18

prescribed by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e.

For reasons

19

discussed below, the Court DISMISSES the Second Amended Complaint

20

WITH LEAVE TO AMEND.2

21

//

22

//

23
24
25
26
27

1

For ease of reference, the Court cites the Second Amended
Complaint and attached exhibits as though they constitute a single
continuously paginated document.
2

Magistrate Judges may dismiss a complaint with leave to
amend without approval from the district judge.
McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).

28
2

PLAINTIFF’S ALLEGATIONS

1
2
3
4

The

factual

allegations

brief and somewhat confusing.

of

the

Second

Amended

Complaint are

Under “Facts,” Plaintiff writes:

5
6

On

are

[sic]

about

March

7

attempted to file a civil rights complaint, 42 U.S.C. sec.

8

1983 in the United States Northern District Court, Case No.

9

CV

14-1250-MEJ-(PR).

On

2014,

or

while

about

housed

April,

at

2014,

PVSP

I

I

was

10

transferred to [RJD], where I was an unknowing victim of

11

“deliberate indifference” when it came to delivery of the

12

incoming U.S. Mail?

13

Paramo) in which K. Seibel, associate warden, took it upon

14

his self to address my concerns?

15

fact, the harassment got worse?

16

“writ of habeas corpus” of my criminal conviction, I stop

17

pursuing the civil rights complaint, and it was dismissed

18

without prejudice!

19

placed in four (4) building on “B”-yard?

20

inmate, I knew something was wrong?

21

a wheelchair shower?

22

started happening?

23

with

24

selectively passed out my incoming mail?

25

family, asking what’s the problem with the registered mail

26

(U.S. Postal Stamps, legal tablets and envelopes) in which

27

I been receiving since my incarceration, 2010/2011 in the

28

Department

a

C/O

named

of

So, I wrote to the Warden (Daniel

Not [illegible]?

In

So, being concerned with a

I was transferred back to [CSP-LAC] and
Being a disabled

Because, there wasn’t

Then the violations of my U.S. Mail
C/O Carter (not her real name) along

Frazier

(both

Corrections,

North
3

African-Americans)

Kern

kept

So, I call my

State

Prison

–

1

Reception

2

“deliberate

3

had/have my family to “register mail,” when it comes to my

4

legal supplies!

5

next with the mis-delivering of the incoming U.S. Mail?

6

have written to Internal Affairs of the State of California

7

Department of Corrections, along?

8

answer back?

9

copy of one of the letter dated July 22, 2016 and a letter

10

of

11

Center!

complaint

So,

I’m

indifference”

aware

was

going

that

this

on!

That

They have the receipts!

M.D.

Steiner,

why

of
I

C/O Marin was
I

(I’ve never received an

(So, I’ve documented this?)).

to

type

Director

Will attach a

dated

Dec.

30th,

2013.

12
13

(SAC at 9-10 (some formatting and spelling altered)).

14

claims that he has been “deprived of his right to correspond and

15

received his personal and legal mail without receiving a notification

16

of confiscation, which is guaranteed by the First Amendment . . . and

17

the Due Process Clause of the Fourteenth Amendment.”

18

Plaintiff also alleges that Defendants have given him “meaningless

19

write-ups” to punish him for taking legal action and have placed him

20

on

21

(wheelchair) instead of a regular table[.]”

loss-of-privileges

status

because

he

“went

Plaintiff

(Id. at 10-11).

to

a

ADA

table

(Id. at 11).

22
23

Plaintiff

seeks

declaratory

relief

stating

(Id. at 11).

that

Defendants’

24

actions violate the Constitution.

25

an injunction requiring Marin, Flores, and the Doe defendants to

26

deliver incoming mail and prohibiting Defendants from harassing or

27

punishing him for filing this action.

28
4

(Id.).

Plaintiff also seeks

Finally, Plaintiff

1

seeks $10,000 in compensatory damages from “all Defendants and each

2

of them,” as well as $10,000 in punitive damages.

(Id. at 12).

3

Attached

4

to

the

Second

Amended

Complaint

are

exhibits which

5

Plaintiff describes as (1) a December 30, 2013 “letter of complaint”

6

to Steiner; (2) a July 22, 2016 “letter of complaint” to the “Office

7

of Internal Affairs;” (3) a “second level CDCR inmate appeal” dated

8

June 13, 2016; and (4) a January 5, 2016 letter to Cano.

9

13).

Many

of

these

documents

are

illegible,

but

they

(Id. at
appear

to

10

complain that Plaintiff’s mail was being withheld.

(Id. at 14-58).

11

The second level appeal response ruled that, on one occasion, several

12

“peel and seal” envelopes were “disallowed” as contraband, and the

13

prison had no record of stamps or legal tablets arriving addressed to

14

Plaintiff.

(See id. at 45-48).

15

STANDARD OF REVIEW

16
17
18

Congress mandates that district courts initially screen civil

19

complaints filed by prisoners seeking redress from a governmental

20

entity or employee.

21

complaint, or any portion thereof, before service of process, if the

22

court concludes that the complaint (1) is frivolous or malicious;

23

(2) fails to state a claim upon which relief may be granted; or

24

(3) seeks monetary relief from a defendant who is immune from such

25

relief.

26

203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc).

28

U.S.C.

28 U.S.C. § 1915A.

§

1915A(b)(1)–(2);

27
28
5

A court may dismiss such a

see

also

Lopez

v.

Smith,

1

Dismissal for failure to state a claim is appropriate if a

2

complaint fails to proffer “enough facts to state a claim for relief

3

that

is

4

550

U.S.

5

(2009).

“A claim has facial plausibility when the plaintiff pleads

6

factual

content

7

inference that the defendant is liable for the misconduct alleged.”

8

Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr.

9

& Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

plausible
544,

on

570

its

face.”
Ashcroft

(2007);

that

Bell
v.

allows

the

Atl.

Corp.

Iqbal,

court

to

556

draw

v.

U.S.

the

Twombly,
662,

678

reasonable

A plaintiff must

10

provide more than “labels and conclusions” or a “formulaic recitation

11

of the elements” of his claim.

12

556 U.S. at 678.

13

[complaint] need only ‘give the defendant fair notice of what the

14

. . . claim is and the grounds upon which it rests.’”

15

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550

16

U.S. at 555).

Twombly, 550 U.S. at 555; Iqbal,

However, “[s]pecific facts are not necessary; the

Erickson v.

17

In

18

considering

whether

to

dismiss

a

complaint,

a

court

is

19

generally limited to the pleadings and must construe all “factual

20

allegations set forth in the complaint . . . as true and . . . in the

21

light

22

250 F.3d 668, 679 (9th Cir. 2001).

23

“to be liberally construed” and held to a less stringent standard

24

than those drafted by a lawyer.

25

Hebbe

26

incorporated the Twombly pleading standard and Twombly did not alter

27

courts’ treatment of pro se filings; accordingly, we continue to

28

construe

most

v.

favorable”

Pliler,

pro

se

627

to

the

F.3d

filings

plaintiff.

Lee

v.

City

of

L.A.,

Moreover, pro se pleadings are

Erickson, 551 U.S. at 94; see also

338,

liberally
6

342

(9th

when

Cir.

2010)

evaluating

them

(“Iqbal

under

1

Iqbal.”).

Nevertheless, dismissal for failure to state a claim can

2

be warranted based on either the lack of a cognizable legal theory or

3

the

4

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.

5

2008).

6

claim

7

necessarily defeat the claim.

8

1228–29 (9th Cir. 1984).

absence

of

factual

support

for

a

cognizable

legal

theory.

A complaint may also be dismissed for failure to state a
if

it

discloses

some

fact

or

complete

defense

that

will

Franklin v. Murphy, 745 F.2d 1221,

9

DISCUSSION

10
11
12

The Second Amended Complaint contains deficiencies warranting

13

dismissal, although leave to amend will be granted with respect to

14

certain claims and Defendants.

See 28 U.S.C. § 1915A(b)(1).

15
16

A.

The Second Amended Complaint Fails to Comply With the Federal
Rules of Civil Procedure

17
18
19

The Court again advises Plaintiff of the following requirements

20

under the Federal Rules of Civil Procedure regarding the formatting

21

of

22

statement

23

relief.”

24
25

a

complaint.
of

the

A

claim

8

must

showing

that

Fed. R. Civ. P. 8(a)(2).

concise, and direct.”
Rule

complaint

if

a

contain

would

short

[plaintiff]

is

and

plain

entitled

to

“Each allegation must be simple,

Fed. R. Civ. P. 8(d)(1).

defendant

“a

have

A complaint violates

difficulty

understanding

and

26

responding to the complaint.

See Cafasso, U.S. ex rel. v. General

27

Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011).
28
7

“A

1

party must state its claims or defenses in numbered paragraphs, each

2

limited as far as practicable to a single set of circumstances.”

3

Fed.

4

transaction or occurrence . . . must be stated in a separate count.”

5

R.

Civ.

P.

10(b).

“[E]ach

claim

founded

on

a

separate

Id.

6
7

As was true of the First Amended Complaint, the Second Amended
8

Complaint names numerous Defendants and includes dozens of pages of
9

exhibits,

but

its

factual

allegations

are

extremely

are

also

brief

and

10

conclusory.

Plaintiff’s

allegations

almost

wholly

11
12
13

undifferentiated regarding the specific actions that each Defendant
is

alleged

to

have

taken.

Defendants

would

have

difficulty

14

responding to the Second Amended Complaint.

Therefore, dismissal for

15

failure to comply with Rule 8 is appropriate.

16

84 F.3d 1172, 1178 (9th Cir. 1996) (dismissal on Rule 8 grounds was

17

warranted where, “[d]espite all the pages, requiring a great deal of

18

time for perusal, one cannot determine from the complaint who is

19

being sued, for what relief, and on what theory, with enough detail

20

to guide discovery”).

See McHenry v. Renne,

21
22
23

B.

Plaintiff Fails To Adequately Allege Personal Participation By
Supervisory Defendants

24
25

Liability

under

§

1983

requires

a

defendant’s

personal

26

participation.

27

(citations

28

vicarious liability is inapplicable to Bivens and § 1983 suits, a

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

omitted);

see

also

Iqbal,

8

556

U.S.

at

676

(“Because

1

plaintiff must plead that each Government-official defendant, through

2

the

3

Constitution.”).

4

violations

5

directed the violations, or knew of the violations and failed to act

6

to prevent them.

official’s

of

own

individual

actions,

has

violated

the

A supervisor is only liable for the constitutional

subordinates

if

the

supervisor

participated

in

or

Taylor, 880 F.2d at 1045.

7

Many of the named Defendants appear to be supervisory officials.

8
9

(SAC at 3-4, 8-9).
C/O’s

under

Plaintiff asserts that (1) Seibel is “responsible

10

for

11

address . . .

12

RJD; (2) Asuncion and Cano were legally responsible “for the overall

13

operation of [CSP-LAC] and for the welfare of all inmates of that

14

prison;” and (3) when Plaintiff filed the initial Complaint, Steiner

15

was “responsible for the overall conduct of warden[s], correctional

16

officers

17

Rehabilitation,” and Steiner was also the intended recipient of a

18

2013 “letter of complaint” that Plaintiff wrote regarding the mis-

19

delivery of his mail.

and

his

supervision”

and

“took

it

upon

his

self

to

concerns” that Plaintiff had raised to the Warden at

inmates

in

California

Department

of

Corrections

and

(See id. at 8-10).

20

Plaintiff’s allegations against Asuncion and Cano appear to be

21
22

based

purely

on

23

§ 1983

24

personally involved in violating his constitutional rights are vague

25

and conclusory at best.

26

of

27

sufficient to withstand a motion to dismiss,” Ivey v. Bd. Of Regents,

28

673 F.2d 266, 268 (9th Cir. 1982); see also Bruns v. Nat’l Credit

action,

official

vicarious

and

his

liability,

allegations

which

that

is

Seibel

inapplicable
and

Steiner

in

a

were

Because “[v]ague and conclusory allegations

participation

in

civil

9

rights

violations

are

not

1

Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997), Plaintiff has not

2

stated a claim against the aforementioned Defendants.

3

claims

4

amend.

against

these

Defendants

must

be

dismissed

Plaintiff’s

with

leave

to

5
6
7

C.

Plaintiff Must Identify Any Unidentified Defendants Before The
Court May Order Service Of Process

8
9

The Second Amended Complaint also names but does not identify

10

several

Defendants,

11

delivering the mail at PVSP.

12

complaint

13

Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (complaint may name

14

fictitious “Doe” defendants if defendants’ identities are unknown

15

when an action is commenced), a plaintiff must provide the Court

16

identifying

17

Marshal to effect service of process before the Court may order

18

service.

19

opportunity

20

Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980).

may

i.e.,

name

to

John

Doe

discover

plaintiff
the

to

names

of

see

permit

should

responsible

for

Although a plaintiff’s

defendants,

sufficient

a

officers

(SAC at 3, 8).

unidentified

information

Therefore,

the

Wakefield

the

United

generally

unknown

be

v.

States

given

defendants.

an
See

21
22

It is premature to order discovery because the Second Amended

23

Complaint is defective for reasons unrelated to the naming of unknown

24

defendants.

25

advised

26

conduct

27

defendants

28

information to effect service.

See Wakefield, 177 F.3d at 1163.

that,

if

he

discovery
and

pursues

to

provide

this

determine
the

action,
the

United

10

he

However, Plaintiff is
may

identities
States

be
of

Marshal

required
any
with

to

unknown
enough

Plaintiff is also advised that he must establish that every

1
2

Defendant,

including

3

involvement

in

4

Defendant’s action or inaction caused the harm suffered.

5

v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

6

Plaintiff’s claims are generally vague and conclusory and, at this

7

stage, he has not provided sufficient allegations to permit the Court

8

to

9

Plaintiff’s civil rights.

conclude

the

that

every

civil

any

unknown

rights

defendant,

violations

individual

had

alleged

or

personal
that

the

See Starr

As discussed supra,

unknown

Defendant

violated

10
11

D.

Plaintiff’s Claims For Damages Against State Officials In Their
Official Capacities Must Be Dismissed

12
13

Some of Plaintiff’s claims for money damages are brought against

14
15

state officers in their official capacities.

16

However, the Eleventh Amendment bars actions in federal court for

17

money

18

capacities.

19

U.S. 58, 71 (1989); Krainski v. Nevada ex rel. Bd. of Regents of

20

Nevada System of Higher Educ., 616 F.3d 963, 967-68 (9th Cir. 2010).

21

Therefore,

22

official capacities must be dismissed.

damages

against

state

officers

(See SAC at 3-4, 12).

sued

in

their

official

See Will v. Michigan Department of State Police, 491

any

damages

claims

against

state

officers

in

their

23
24

E.

Plaintiff Fails To State A Claim For Relief

25
26

Plaintiff’s principal claim is that Defendants have withheld or

27

mis-delivered his mail.

(SAC at 9-10).

28

Amendment right to send and receive mail.
11

Prisoners have a First
See Thornburgh v. Abbott,

1

490 U.S. 401, 407 (1989).

Restrictions on mail are analyzed under

2

the reasonableness standard set forth in Turner v. Safley, 482 U.S.

3

78, 89–91 (1987).

4

when a prison regulation impinges on inmates’ constitutional rights,

5

the regulation is valid if it is reasonably related to legitimate

6

penological interests.

See Thornburgh, 490 U.S. at 409–14.

Under Safley,

482 U.S. at 89.

7

To determine the reasonableness of the regulation, a court must

8
9

consider

the

following:
between

whether

“valid,

12

alternative means of exercising the right,” (3) the impact that the

13

“accommodation

14

guards

15

alternatives.”

16

a prisoner’s communications, United States v. Wilson, 447 F.2d 1, 8

17

n.4

18

Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995).

19

mail delivery generally does not violate an inmate’s First Amendment

20

rights,

21

isolated disruption of an inmate’s mail is not usually sufficient to

22

violate the Constitution, Davis v. Goord, 320 F.3d 346, 351 (2d. Cir.

23

2003); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997); Smith v.

24

Maschner, 899 F.2d 940, 944 (10th Cir. 1990).

and

(9th

of

the

other

Cir.

Crofton

asserted

inmates,”

1971),

v.

and

Roe,

(4)

“the

right

government
there

will

absence

are

have

of

on

ready

Prison officials may lawfully examine

inspect

170

(2) “whether

constitutional
and

Id. at 89–90.

it,

legitimate

rational

interest

justify

the

a

11

to

and

is

connection”

forward

regulation

there

10

put

the

(1)

F.3d

non-legal

957,

961

mail

(9th

for

contraband,

A short delay in

Cir.

1999),

and

25

Plaintiff’s claims regarding the mis-delivery of his mail are

26
27

deficient as currently pled.

28

set

forth

only

generally

As noted supra, Plaintiff’s claims are
and

conclusorily,
12

and

his

allegations

1

provide insufficient factual detail to permit the Court to perform

2

the plausibility analysis required by 28 U.S.C. § 1915A, Twombly, and

3

Iqbal.

4

permissible

5

particularly important that Plaintiff provide enough factual detail

6

to

7

alleged that his rights were violated.

8

the

9

therefore be dismissed with leave to amend.

Given

permit

that

under

the

Safley’s

Court

mis-delivery

numerous

of

to

restrictions

reasonableness

evaluate

his

mail

on

whether

are

prisoner

mail

standard,

Plaintiff

has

are

it

is

plausibly

Plaintiff’s claims related to
insufficiently

pled

and

must

given

him

10

Plaintiff

11

also

alleges

that

Defendants

have

12

“meaningless write-ups” to punish him for taking legal action and

13

have placed him on loss-of-privileges status because he “went to a

14

ADA table (wheelchair) instead of a regular table[.]”

15

These

16

retaliation claim or a claim under the Americans with Disabilities

17

Act (“ADA”).

allegations

may

be

intended

to

state

a

(SAC at 11).

First

Amendment

18

“‘A

19

prisoner

suing

prison

officials

under

Section

1983

for

20

retaliation must allege that he was retaliated against for exercising

21

his constitutional rights and that the retaliatory action does not

22

advance

23

institutional order and discipline.’”

24

1288

25

“plaintiff must allege that the defendant’s [retaliatory] actions

26

caused him some injury.”

27

Cir. 2000).

28

Amendment retaliation entails five basic elements: (1) An assertion

legitimate

(9th

Cir.

penological

2003)

(citations

goals,

such

as

preserving

Bruce v. Ylst, 351 F.3d 1283,
omitted).

Additionally,

the

Resnick v. Hayes, 213 F.3d 443, 449 (9th

Thus, in the prison context, a viable claim of First

13

1

that

a

state

2

(2) because of (3) that prisoner’s protected conduct, and that such

3

action

4

rights, and (5) the action did not reasonably advance a legitimate

5

correctional goal.

6

2009).

(4)

actor

chilled

took

the

some

adverse

inmate’s

action

exercise

of

against

his

an

First

inmate

Amendment

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

7

Title

8
9

II

of

the

Americans

with

Disabilities

Act

“prohibit[s] discrimination on the basis of disability.”

(ADA)

Lovell v.

10

Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).

11

that “no qualified individual with a disability shall, by reason of

12

such disability, be excluded from participation in or be denied the

13

benefits of the services, programs, or activities of a public entity,

14

or be subject to discrimination by such entity.”

15

Title

16

Pennsylvania

17

(1998).

18

plaintiff must show that (1) [he] is a qualified individual with a

19

disability; (2) [he] was excluded from participation in or otherwise

20

discriminated

21

programs, or activities; and (3) such exclusion or discrimination was

22

by reason of [his] disability.”

23

also

24

individual because such individual has opposed any act or practice

25

made unlawful by this chapter.”

II

of

the
Dept.

“To

provides

ADA
of

that

to

Corrections

establish

against

applies

a

with

“[n]o

v.

violation

regard

to

inmates
Yeskey,
of

a

Title

public

Title II provides

42 U.S.C. § 12132.
in
524
II

state
U.S.
of

shall

entity’s

discriminate

206,

the

Lovell, 303 F.3d at 1052.

person

prisons.
213

ADA,

a

services,

The ADA

against

any

See also 42 U.S.C. § 12203(a).

26

Plaintiff’s Second Amended Complaint does not adequately allege

27
28

a

First

Amendment

retaliation

claim
14

or

a

claim

under

the

ADA.

1

Particularly, Plaintiff provides no facts or “chronology of events”

2

tending to show a plausible causal connection between the adverse

3

actions alleged and Plaintiff’s complaints or a disability.

4

Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Lovell, 303

5

F.3d at 1052; see also Iqbal, 556 U.S. at 678.

See

6
7
8

Because Plaintiff fails to state a cognizable claim for relief,
the Second Amended Complaint must be dismissed with leave to amend.

9

CONCLUSION

10
11
12
13

For

the

reasons

discussed

above,

Plaintiff’s

claims

are

DISMISSED WITH LEAVE TO AMEND to correct the aforementioned defects.

14
15

If Plaintiff still wishes to pursue this action, he shall file a

16

Third Amended Complaint no later than 30 days from the date of this

17

Order or no later than March 23, 2017.

18

must cure the pleading defects discussed above and shall be complete

19

in itself without reference to any prior pleading.

20

(“Every amended pleading filed as a matter of right or allowed by

21

order of the Court shall be complete including exhibits.

22

pleading shall not refer to the prior, superseded pleading.”).

23

means that Plaintiff must allege and plead any viable claims in any

24

prior complaint again.

The Third Amended Complaint

See L.R. 15-2

The amended
This

25
26

In any Third Amended Complaint, Plaintiff should identify the

27

nature of each separate legal claim and confine his allegations to

28

those

operative

facts

supporting
15

each

of

his

claims.

For

each

1

separate legal claim, Plaintiff should state the civil right that has

2

been violated and the supporting facts for that claim only.

3

to Federal Rule of Civil Procedure 8(a), all that is required is a

4

“short and plain statement of the claim showing that the pleader is

5

entitled

6

allegations in the Third Amended Complaint should be consistent with

7

the authorities discussed above.

8

Complaint may not include new Defendants or claims not reasonably

9

related

to

to

relief.”

the

However,

allegations

in

Plaintiff

is

advised

Pursuant

that

the

In addition, the Third Amended

the

previously

filed

complaints.

10

Plaintiff is strongly encouraged to once again utilize the standard

11

civil rights complaint form when filing any amended complaint, a copy

12

of which is attached.

13

Plaintiff is explicitly cautioned that failure to timely file a

14
15

Third

Amended

Complaint,

16

described above, may result in a recommendation that this action, or

17

portions

18

prosecute and/or failure to comply with court orders.

19

Civ. P. 41(b).

20

//

21

//

22

//

thereof,

be

or

failure

dismissed

with

23
24
25
26
27
28
16

to

correct

prejudice

the

for

deficiencies

failure

to

See Fed. R.

1

Plaintiff is further advised that if he no longer wishes to

2

pursue this action in its entirety or with respect to particular

3

Defendants or claims, he may voluntarily dismiss all or any part of

4

this

5

Federal Rule of Civil Procedure 41(a)(1).

6

is attached for Plaintiff’s convenience.

action

by

filing

a

Notice

of

Dismissal

in

accordance

A form Notice of Dismissal

7
8

IT IS SO ORDERED.

9
10

Dated: February 21, 2017

11
12
13

______________/s/_____________
ALKA SAGAR
United States Magistrate Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17

with