Hughes v. City of Mariposa et al

Filing 48

ORDER DISMISSING 39 Second Amended Complaint For Failure to State a Claim, WITH LEAVE TO AMEND Claim For Deprivation of Outdoor Exercise; ORDER DISMISSING All Remaining Claims For Failure to State a Claim, Without Leave to Amend; Thirty Day Deadline to File Third Amended Complaint as Instructed by This Order, signed by Magistrate Judge Gary S. Austin on 10/26/2011. Amended Complaint Due Within Thirty Days. (Attachments: # 1 1983 Amended Complaint Form) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BERNARD C. HUGHES,

1:09-cv-02249-GSA-PC

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SCREENING ORDER
Plaintiff,

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ORDER DISMISSING SECOND AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM, WITH LEAVE TO AMEND CLAIM FOR
DEPRIVATION OF OUTDOOR EXERCISE
(Doc. 39.)

v.
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CITY OF MARIPOSA, et al.,
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Defendants.

ORDER DISMISSING ALL REMAINING CLAIMS
FOR FAILURE TO STATE A CLAIM, WITHOUT
LEAVE TO AMEND

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THIRTY DAY DEADLINE TO FILE THIRD
AMENDED COMPLAINT AS INSTRUCTED BY
THIS ORDER

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/
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I.

RELEVANT PROCEDURAL HISTORY

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Bernard C. Hughes (“Plaintiff”) is a state prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”), proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. On January 13, 2010, Plaintiff consented

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to Magistrate Judge jurisdiction in this action, and no other parties have made an appearance. (Doc.

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4.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California,

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the undersigned shall conduct any and all proceedings in the case until such time as reassignment

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to a District Judge is required. Local Rule Appendix A(k)(3).
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Plaintiff filed the Complaint commencing this action on December 29, 2009. (Doc. 1.) On

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February 17, 2010, Plaintiff filed the First Amended Complaint. (Doc. 25.) The Court screened the

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First Amended Complaint pursuant to 28 U.S.C. 1915A and entered an order on October 22, 2010,

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dismissing the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 29.)

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On January 21, 2011, Plaintiff filed the Second Amended Complaint, which is now before the Court

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for screening. (Doc. 39.)

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II.

SCREENING REQUIREMENT

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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint

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for sufficiency to state a claim. “Notwithstanding any filing fee, or any portion thereof, that may

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have been paid, the court shall dismiss the case at any time if the court determines that . . . the action

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or appeal . . . is legally “frivolous or malicious,” fails to state a claim upon which relief may be

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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

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1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be

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granted to the extent that the deficiencies of the complaint can be cured by amendment.

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). “[P]laintiffs [now] face a higher

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burden of pleadings facts . . ,” Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a

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plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted inferences,”

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted).

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III.

SUMMARY OF SECOND AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the Deuel Vocational Institution in Tracy, California.

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The events at issue occurred at the Mariposa County Jail in Mariposa, California, when Plaintiff was

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detained there as a pretrial detainee. Plaintiff names as defendants Susan Brent (Jail Commander)

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and Ron Beverage (Jailer).
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Plaintiff alleges as follows in the Second Amended Complaint. On January 30, 2009,

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defendant Beverage started his shift by conducting a count. Defendant Beverage confiscated an

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allowed periodical from Plaintiff, which Plaintiff had received by mail. Plaintiff did not know

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defendant Beverage had confiscated his periodical until five hours later. Plaintiff activated the

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intercom system and asked for the periodical to be returned to him. Officer Beverage said, “No.”

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During another count, Plaintiff asked defendant Beverage why his property was taken, and defendant

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Beverage replied, “It is contraband,” and closed the section door.

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Plaintiff had an emotional outburst and threw a small plastic garbage can at the closing door

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of his jail unit. Defendant Beverage falsified a report, stating that Plaintiff attempted to assault him

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with the garbage can. Plaintiff was found guilty of attempted assault at a disciplinary hearing.

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Subsequently, an isolation period was assessed, and a classification review was conducted. Plaintiff

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was not allowed to attend or receive documentation of the classification review, or to attend the

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subsequent ninety-day review, as Plaintiff requested of defendant Brent.

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Defendant Brent authorized Plaintiff’s disciplinary isolation for forty-five consecutive days,

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without a review by the Facility Manager or health care staff, or documentation of a review, as

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required by Title 15 Procedures Re Minimum Guidelines for Jail Detention Facilities. During the

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forty-five day isolation period, Plaintiff was not allowed any outdoor recreational activity.

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Plaintiff brings claims under the First Amendment, the Due Process Clause, and for cruel and

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unusual punishment. Plaintiff requests monetary damages, injunctive relief, and attorney fees.

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IV.

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PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). “To the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution,

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Section 1983 offers no redress.” Id.

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A.

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Plaintiff names as defendant Susan Brent, who holds a supervisory position as Jail

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Commander of the Mariposa County Detention Facility. Under section 1983, Plaintiff must

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demonstrate that each defendant personally participated in the deprivation of his rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). Plaintiff must demonstrate that each

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defendant, through his or her own individual actions, violated Plaintiff’s constitutional rights. Iqbal,

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129 S.Ct. at 1948-49. Liability may not be imposed on supervisory personnel under section 1983

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on the theory of respondeat superior, as each defendant is only liable for his or her own misconduct.

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Iqbal, 129 S.Ct. at 1948-49; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A

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supervisor may be held liable only if he or she “participated in or directed the violations, or knew

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of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989); accord Starr v. Baca, No. 09-55233, 2011 WL 477094, at *4-5 (9th Cir. Feb. 11, 2011);

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board

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of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir.

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1997). Therefore, to the extent that Plaintiff seeks to impose liability upon either of the defendants

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in their supervisory capacity, Plaintiff fails to state a claim.

Personal Participation and Supervisory Liability

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B.

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“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication

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of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861

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(1979). However, “pretrial detainees may be subjected to a disciplinary segregation [if they were

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afforded] a due process hearing to determine whether they have in fact violated any rule.” Mitchell

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v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996).

Due Process - Jail Discipline

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The Due Process Clause protects against the deprivation of liberty without due process of

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law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393 (2005). In order to invoke the

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protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty interest

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for which the protection is sought. Id. Liberty interests may arise from the Due Process Clause itself
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or from state law. Id. Under state law, the existence of a liberty interest created by prison

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regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S.

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472, 481-84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are “generally limited to

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freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation

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to the ordinary incidents of prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716, 718 (9th Cir.

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2007).

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The elements of due process in a prison disciplinary hearing have long been established by

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Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974). Mitchell, 75 F.3d at 525. The minimum

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procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours

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between the time the prisoner receives written notice and the time of the hearing, so that the prisoner

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may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and

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reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense,

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when permitting him to do so would not be unduly hazardous to institutional safety or correctional

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goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented

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are legally complex. Wolff , 418 U.S. at 563-71. As long as the five minimum Wolff requirements

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are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994).

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With regard to Plaintiff’s disciplinary hearing, Plaintiff fails to state a due process claim

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because he has not alleged facts demonstrating that the five minimum Wolff requirements were not

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met. Plaintiff has not alleged that he was not given proper notice of the charges or notice of the

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hearing, that he did not receive a written statement of the evidence relied upon, that he was not

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permitted to call witnesses, or that he was not given legal assistance, pursuant to Wolff. With regard

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to Plaintiff’s classification hearing and subsequent ninety-day review, Plaintiff has not established

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that he was deprived of any protected interest as a result of the hearing or review.

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With regard to Plaintiff's allegations that defendants did not comply with requirements of

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Title 15 Procedures Re Minimum Guidelines for Jail Detention Facilities, Plaintiff is informed that

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violation of state tort law, state regulations, rules and policies of the CDCR, or other state law is not

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sufficient to state a claim for relief under § 1983. To state a claim under § 1983, there must be a

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deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976).
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Although the court may exercise supplemental jurisdiction over state law claims, Plaintiff must first

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have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367.

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Based on the foregoing, Plaintiff fails to state a cognizable claim for violation of his rights
to due process.

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D.

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Plaintiff brings a claim for “cruel and unusual punishment” based on his detention in

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isolation for forty-five days. (First Amended Complaint, Doc. 39, ¶II.C.) While pretrial detainees’

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rights are protected under the Due Process Clause of the Fourteenth Amendment, the standard for

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claims brought under the Eighth Amendment has long been used to analyze pretrial detainees’

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conditions of confinement claims. Simmons Simmons v. Navajo County, Ariz., 609 F.3d 1011,

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1017-18 (9th Cir. 2010); Clouthier Clouthier v. County of Contra Costa, 591 F.3d 1232, 1244 (9th

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Cir. 2010); Conn v. City of Reno, 591 F.3d 1081, 1094 (9th Cir. 2010); Frost v. Agnos, 152 F.3d

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1124, 1128 (9th Cir. 1998). The Eighth Amendment protects prisoners from inhumane methods of

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punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041,

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1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of confinement

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claim, and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503

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U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). In order to state a claim for

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violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that

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prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g.,

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Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Frost, 152 F.3d at 1128. The

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circumstances, nature, and duration of the deprivations are critical in determining whether the

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conditions complained of are grave enough to form the basis of a viable Eighth Amendment claim.

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Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). “[R]outine discomfort inherent in the prison

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setting” does not rise to the level of a constitutional violation. Id. at 731.

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Conditions of Confinement

Plaintiff fails to allege any facts demonstrating that the conditions in isolation, except for the

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deprivation of outdoor exercise discussed below, were sufficiently grave to rise to the level of an

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Eighth Amendment violation, or that any defendant knew of and disregarded a substantial risk of

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serious harm to Plaintiff.

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C.

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“[P]re-adjudication detainees retain greater liberty protections than convicted ones.” Jones

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v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations omitted). As a pretrial detainee, Plaintiff is

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protected from conditions of confinement which amount to punishment. Bell, 441 U.S. at 535-36;

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Simmons, 609 F.3d at 1017-18; Clouthier, 591 F.3d at 1244. As stated above, pretrial detainees’

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rights are protected under the Due Process Clause of the Fourteenth Amendment, and Eighth

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Amendment standards have long been used to analyze pretrial detainees’ conditions of confinement

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claims. Simmons, 609 F.3d at 1017-18; Clouthier, 591 F.3d at 1242; Conn, 591 F.3d at 1094; Frost,

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152 F.3d at 1128. To state a claim, Plaintiff must allege facts demonstrating that prison officials

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knew of and disregarded a substantial risk of serious harm to Plaintiff. E.g., Farmer, 511 U.S. at

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847; Frost, 152 F.3d at 1128.

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Deprivation of Outdoor Exercise

Inmates have a constitutional right to outdoor exercise under the Eighth Amendment.

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Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010). “‘[S]ome form of regular outdoor

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exercise is extremely important to the psychological and physical well being of the inmates.’” Allen

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v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1995) (quoting Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

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1979)). Thus, “[the] deprivation of outdoor exercise [can] constitute cruel and unusual punishment.”

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Allen, 48 F.3d at 1087. While the temporary denial of outdoor exercise with no medical effects is

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not a substantial deprivation, May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997), in this Circuit, the

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deprivation of regular outdoor exercise for a prolonged period, is unquestionably sufficient to meet

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the objective requirement of the Eighth Amendment analysis. Lopez v. Smith, 203 F.3d 1122, 1132-

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33 (9th Cir. 2000) (denial of all outdoor exercise for six weeks meets objective Eighth Amendment

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requirement); Allen, 48 F.3d at 1086-88 (forty-five minutes of outdoor exercise per week for six

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weeks meets objective Eighth Amendment requirement). Regular outdoor exercise is necessary

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“unless inclement weather, unusual circumstances, or disciplinary needs ma[k]e that impossible.

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Spain, 600 F. 2d at 199.

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It appears that Plaintiff may be able to state a claim for deprivation of exercise. Denial of

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outdoor exercise for forty-five consecutive days is sufficiently serious to satisfy the objective

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component of Plaintiff’s due process claim. Thomas, 611 F.3d at 1151-52. However, Plaintiff has

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not met the subjective requirement of his claim, because he has not alleged deliberate indifference

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by either of the defendants.

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demonstrating that a named defendant knew of and disregarded a substantial risk of serious harm to

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Plaintiff. Plaintiff shall be granted leave to amend this claim.

To state a cognizable claim, Plaintiff must also allege facts

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E.

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Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728,

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730 (9th Cir. 1974). However, while an authorized, intentional deprivation of property is actionable

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under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13, 104 S.Ct. 3194

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(1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148 (1982));

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Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), “[a]n unauthorized intentional deprivation of

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property by a state employee does not constitute a violation of the procedural requirements of the

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Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the

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loss is available,” Hudson, 468 U.S. at 533.

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Deprivation of Personal Property

California Law provides an adequate post-deprivation remedy for any property deprivations.

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See Cal. Gov't Code §§ 810-895; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).

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California’s Tort Claims Act requires that a tort claim against a public entity or its employees be

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presented to the California Victim Compensation and Government Claims Board, formerly known

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as the State Board of Control, no more than six months after the cause of action accrues. Cal. Gov’t

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Code §§ 905.2, 910, 911.2, 945.4, 950-950.2 (West 2006). Presentation of a written claim, and

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action on or rejection of the claim are conditions precedent to suit. State v. Superior Court of Kings

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County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116, 124, 13 Cal.Rptr.3d 534, 543 (2004); Mangold

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v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against

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a public employee, a plaintiff must allege compliance with the Tort Claims Act. Bodde, 32 Cal.4th

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at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627

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(9th Cir. 1988).
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Plaintiff alleges that defendant Beverage improperly confiscated an allowed periodical from

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Plaintiff, which indicates that the deprivation of property was intentional and unauthorized. Thus,

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Plaintiff’s remedy would be found under California law. Plaintiff fails to show compliance with the

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California Tort Claims Act, and therefore his property claim is not cognizable under federal or state

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law.

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F.

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“[T]he First Amendment right of free speech applies within prison walls.” Valdez v.

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Rosenbaum, 302 F.3d 1039 (9th Cir. 2002). “[W]hen a prison regulation impinges on inmates’

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constitutional rights, the regulation is valid if it is reasonably related to legitimate penological

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interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.ct. 2254, 2262 (1987). To determine whether

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a jail’s policy is “‘reasonably related to legitimate penological interests,’ and therefore valid, [the

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court] must consider four factors: (1) whether there is a valid, rational connection between the policy

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and the legitimate governmental interest put forward to justify it; (2) whether there are alternative

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means of exercising the right; (3) whether the impact of accommodating the asserted constitutional

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right will have a significant negative impact on prison resources generally; and (4) whether the policy

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is an ‘exaggerated response’ to the jail’s concerns.” Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir.

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1999) (citing see Turner, 482 U.S. at 89-90; Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993)).

First Amendment - Free Speech

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Plaintiff alleges that defendant Beverage took a periodical away from Plaintiff. However,

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Plaintiff has not alleged that there is no valid, rational connection between the jail’s policy and the

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legitimate governmental interest put forward to justify it, or that Plaintiff did not have other means

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of exercising his right. Therefore, Plaintiff fails to state a claim under the First Amendment.

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G.

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Plaintiff requests injunctive relief via an order requiring defendant Brent to initiate proper

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classification procedures at Mariposa County Jail. Any award of equitable relief is governed by the

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Prison Litigation Reform Act, which provides in relevant part, “Prospective relief in any civil action

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with respect to prison conditions shall extend no further than necessary to correct the violation of

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the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any

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prospective relief unless the court finds that such relief is narrowly drawn, extends no further than

Claims for Injunctive Relief and Attorney Fees

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necessary to correct the violation of the Federal right, and is the least intrusive means necessary to

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correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). Moreover, when an inmate

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seeks injunctive or declaratory relief concerning the prison where he is incarcerated, his claims for

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such relief become moot when he is no longer subjected to those conditions. Dilley v. Gunn, 64 F.3d

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1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). The events at

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issue in this action allegedly occurred at the Mariposa County Jail, and Plaintiff is no longer housed

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there. Based on the nature of the claims at issue in this action, Plaintiff is not entitled to injunctive

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relief and is therefore confined to seeking money damages for the violations of his federal rights.

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With regard to attorney fees, “In any action or proceeding to enforce a provision of section[]

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1983 . . . , the court, in its discretion, may allow the prevailing party . . . reasonable attorney’s fees

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. . . . ” 42 U.S.C. § 1988(b). Plaintiff’s contention that he is entitled to attorney’s fees if he prevails

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is without merit. Plaintiff is representing himself in this action. Because Plaintiff is not represented

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by an attorney, he is not entitled to recover attorney’s fees if he prevails. Gonzales v. Kangas, 814

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F.2d 1411, 1412 (9th Cir. 1987).

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s Second Amended Complaint fails to state any cognizable

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claims upon which relief may be granted under § 1983. The Court previously dismissed the First

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Amended Complaint and granted Plaintiff an opportunity to amend, with detailed guidance by the

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Court. It appears that Plaintiff may be able to state a claim for deprivation of outdoor exercise, and

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therefore Plaintiff shall be granted leave to amend this claim. However, it appears that Plaintiff is

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incapable of curing the deficiencies outlined in the Court’s screening order as to Plaintiff's other

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claims, and further leave to amend those claims shall not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii);

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be freely

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given when justice so requires.’” The Court will provide Plaintiff with time to file an amended

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complaint, amending only his claim for deprivation of outdoor exercise. Lopez v. Smith, 203 F.3d

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1122, 1126-30 (9th Cir.2000). Plaintiff is granted leave to file a Third Amended Complaint within

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thirty days.
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The amended complaint should be brief, but must state what each named defendant did that

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led to the deprivation of Plaintiff’s constitutional rights to outdoor exercise. Fed. R. Civ. P. 8(a);

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Iqbal, 129 S.Ct. at 1948-49; Jones, 297 F.3d at 934. There is no respondeat superior liability, and

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each defendant is only liable for his or her own misconduct. Iqbal, 129 S.Ct. at 1948-49. Plaintiff

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must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 1949

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(quoting Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added).

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Plaintiff should also note that although he has been given the opportunity to amend, it is not

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for the purposes of adding unrelated claims. In addition, Plaintiff should take care to include only

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those claims for which he has exhausted his administrative remedies.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. As a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an

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amended complaint is filed, the original complaint no longer serves any function in the case.

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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly

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titled “Third Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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which relief may be granted under section 1983;
2.

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Plaintiff is GRANTED leave to file a Third Amended Complaint, amending only his
claim for deprivation of outdoor exercise;

3.

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The Second Amended Complaint is DISMISSED for failure to state a claim upon

All of Plaintiff’s remaining claims are DISMISSED from this action without leave
to amend;

4.

Plaintiff’s claims for violation of Free Speech under the First Amendment, for

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confiscation of personal property (a periodical), for adverse conditions of

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confinement based on his detention in isolation, for violation of due process with
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respect to his disciplinary and classification hearings, and for injunctive relief and

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attorney fees, are DISMISSED from this action for failure to state a claim, without

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leave to amend;

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5.

The Clerk shall send Plaintiff a civil rights complaint form;

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6.

Within thirty days, Plaintiff shall file a Third Amended Complaint amending only his

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claim for deprivation of outdoor exercise;
7.

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Plaintiff shall entitle the amended complaint “Third Amended Complaint” and refer
to case number 1:09-cv-02249-GSA-PC; and

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Plaintiff’s failure to comply with this order shall result in the dismissal of this action
in its entirety, for failure to state a claim.

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IT IS SO ORDERED.
Dated:
6i0kij

October 26, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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