Patterson v. Kern County Sheriff's Officer

Filing 10

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 2/28/2012. Amended Complaint due by 4/2/2012. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JAMES R. PATTERSON, 9 CASE NO. Plaintiff, ORDER DISMISSING PLAINTIFF’S COMPLAINT WITH LEAVE TO AMEND 10 11 12 1:12-CV-0132-MJS (PC) v. (ECF NO. 1) KERN COUNTY SHERIFF’S OFFICE, AMENDED COMPLAINT DUE WITHIN THIRTY DAYS 13 Defendant. 14 / 15 16 17 SCREENING ORDER 18 19 I. PROCEDURAL HISTORY 20 On January 25, 2012, Plaintiff James Patterson, a state prisoner proceeding pro se 21 and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 22 1.) 23 Plaintiff’s Complaint is now before the Court for screening. 24 25 /////// 26 27 -1- 1 II. 2 3 SCREENING REQUIREMENT The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 5 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 6 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 7 relief may be granted, or that seek monetary relief from a defendant who is immune from 8 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 9 thereof, that may have been paid, the court shall dismiss the case at any time if the court 10 determines that ... the action or appeal ... fails to state a claim upon which relief may be 11 12 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, 14 or immunities secured by the Constitution and laws' of the United States.” Wilder v. Virginia 15 Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not 16 itself a source of substantive rights, but merely provides a method for vindicating federal 17 rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94 (1989). 18 19 III. SUMMARY OF COMPLAINT 20 Plaintiff was incarcerated at the Ledro Pretrial Detention Center in Bakersfield, 21 California (“Ledro”), during the events alleged in the Complaint. (Compl. p. 5, ECF No. 1.) 22 Plaintiff complains that Defendant used excessive force against him, and was indifferent 23 to his resultant medical needs, violating his civil rights. (Compl. at 3-5.) 24 Plaintiff Complaint is confusing. It appears to name as Defendant the Kern County 25 26 Sheriff’s Office based upon the conduct of unnamed individual sheriff officers. (Id. at 1, 5.) 27 -2- 1 On September 5, 2011, Plaintiff, while on suicide watch and in “mechanical 2 restraints”, “was beaten and sprayed with foam pepper spray ... kicked twisted and left to 3 [burn]” by “[unnamed] detention officers1 [] as an abusive form of torture.” (Id. at 3-5.) 4 Plaintiff claims he suffered eye and ear infections, and medical and mental damage 5 6 7 including bad dreams. (Id. at 3, 5.) He seeks “force punitive damages”. (Id. at 3.) IV. ANALYSIS 8 A. 9 To state a claim under Section 1983, a plaintiff must allege two essential elements: 10 (1) that a right secured by the Constitution or laws of the United States was violated and (2) 11 Pleading Requirements Generally that the alleged violation was committed by a person acting under the color of state law. 12 13 14 See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir.1987). 15 A complaint must contain “a short and plain statement of the claim showing that the 16 pleader is entitled to relief ....“ Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not 17 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 19 20 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff 21 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible 22 on its face.’“ Id. Facial plausibility demands more than the mere possibility that a defendant 23 committed misconduct and, while factual allegations are accepted as true, legal conclusions 24 are not. Id. at 1949–50. 25 26 1 27 Consisting of 1 sergeant, 1 fem ale, 2 m ales. (Com pl. at 5.) -3- 1 B. 2 A local government unit may not be held responsible for the acts of its employees 3 under a respondeat superior theory of liability. Monell v. Department of Social Services, 436 4 Municipal Liability U.S. 658, 691 (1978). A local government unit may only be held liable if it inflicts the injury 5 6 7 complained of through a policy or custom. Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir. 2010). 8 A local government unit can be held liable under section 1983 under three theories. 9 First, where the implementation of official policies or established customs, causes the 10 constitutional injury. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 11 2010). Second, where acts or omissions causing the constitutional injury amount to official 12 13 policy of the municipality. Id. at 1249. Finally, where an official has ratified the 14 unconstitutional decision or action of an employee of the municipality. Id. at 1250. “A 15 custom can be shown or a policy can be inferred from widespread practices or ‘evidence 16 of repeated constitutional violations for which the errant municipal officers were not 17 discharged or reprimanded.’” Pierce v. County of Orange, 526 F.3d 1190, 1211 (9th Cir. 18 2008). 19 A policy can be one of action or inaction and “is defined as ‘a deliberate choice to 20 21 follow a course of action ... made from among various alternatives by the official or officials 22 responsible for establishing final policy with respect to the subject matter in question.’” 23 Waggy, 594 F.3d at 713 (quoting Monell, 436 U.S. at 589). 24 25 To find a municipality liable for a failure to act, the plaintiff must show that an employee of the municipality violated his constitutional rights, that the customs or policies 26 of the municipality amount to deliberate indifference, and those “customs or policies were 27 -4- 1 the moving force behind” the violation of plaintiff's constitutional rights. Long v. County of 2 Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). For a custom or policy to be the moving 3 force behind the constitutional violation, it must be “closely related to the ultimate injury.” 4 Long, 442 F.3d at 1190. 5 Plaintiff has failed to adequately allege municipal liability. The Complaint does not 6 identify any specific policy, widespread practice, or ratified conduct that was the moving 7 8 force behind the alleged violation. 9 The Court will grant Plaintiff an opportunity to amend. In order to state a claim 10 against Defendant Kern County Sheriff’s Office, Plaintiff must allege truthful facts that 11 demonstrate specific policies and practices were deliberately indifferent to the use of 12 excessive force against him and the moving force behind the alleged constitutional violation. 13 C. Personal Participation 14 15 Under Section 1983, Plaintiff must demonstrate that each individually named 16 defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 17 F.3d 930, 934 (9th Cir. 2002). The Supreme Court has emphasized that the term 18 “supervisory liability,” loosely and commonly used by both courts and litigants alike, is a 19 misnomer. Iqbal, 129 S.Ct. at 1949. “Government officials may not be held liable for the 20 unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. 21 22 at 1948. Rather, each government official, regardless of his or her title, is only liable for his 23 or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant, 24 through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at 25 1948–49. 26 “As a general rule, the use of ‘John Doe’ to identify a defendant is not favored.” 27 -5- 1 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). “It is permissible to use Doe 2 defendant designations in a complaint to refer to defendants whose names are unknown 3 to plaintiff. Although the use of Doe defendants is acceptable to withstand dismissal of a 4 complaint at the initial review stage, using Doe defendants creates its own problem: those 5 persons cannot be served with process until they are identified by their real names.” 6 Robinett v. Correctional Training Facility, 2010 WL 2867696, *4 (N.D. Cal. July 20, 2010). 7 8 Plaintiff fails to identify, or name as Doe defendants, the individual detention officers 9 allegedly involved in this incident. Plaintiff, if he chooses to amend, may not proceed against 10 individual detention officers unless he identifies them, or names them as Doe defendants, 11 and truthfully alleges how each personally violated, or knowingly directed a violation of his 12 constitutional rights. 13 Plaintiff is advised that any named Doe defendants cannot be served by the United 14 15 States Marshal until Plaintiff has identified them as actual individuals and amended his 16 complaint to substitute the defendants' actual names. The burden remains on Plaintiff to 17 promptly discover the full names of Doe defendants. Id. 18 19 20 D. Excessive Force Plaintiff alleges that Defendant used excessive force against him in violation of the constitutional right to be free of such force.2 21 22 23 24 25 2 It rem ains unclear from the pleadings whether Plaintiff had been convicted of a crim e at the tim e of the alleged violations. Claim s for excessive force, when brought by a detainee who has been neither charged nor convicted of a crim e, are analyzed under the Fourteenth Am endm ent reasonableness standard. Gibson v. County of W ashoe, 290 F.3d 1175, 1185–86 (9th Cir. 2002); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Claim s for excessive force, when brought by a prisoner who has been charged and convicted, are analyzed under the Eighth Am endm ent cruel and unusual punishm ents standard. W ilkins v. Gaddy, –––U.S. ––––, ––––, 130 S.Ct. 1175, 1178 (2010). 26 27 -6- 1 2 The analysis of an excessive force claim brought pursuant to Section 1983 begins 3 with “identifying the specific constitutional right allegedly infringed by the challenged 4 application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989). 5 The Due Process Clause of the Fourteenth Amendment protects pre-trial detainees 6 from the use of excessive force. Redman v. County of San Diego, 942 F.2d 1435, 1440 7 8 (9th Cir. 1991) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). In resolving a 9 substantive due process claim, courts must balance “several factors focusing on the 10 reasonableness of the officers’ actions given the circumstances.” White v. Roper, 901 F.2d 11 1501, 1507 (9th Cir. 1990) (quoting Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir. 12 1987)) (overruled on other grounds)). In the White case, the Ninth Circuit articulated four 13 factors that courts should consider in resolving a due process claim alleging excessive 14 15 force. The factors are (1) the need for the application of force, (2) the relationship between 16 the need and the amount of force that was used, (3) the extent of the injury inflicted, and 17 (4) whether force was applied in a good faith effort to maintain and restore discipline. White 18 901 F.2d at 1507. 19 20 The Cruel and Unusual Punishments Clause of the Eighth Amendment protects prisoners from the use of excessive physical force. Wilkins v. Gaddy, –––U.S. ––––, ––––, 21 22 130 S.Ct. 1175, 1178 (2010); See Hudson v. McMillian, 503 U.S. 1, 8–9 (1992); see also 23 Bell v. Wolfish, 441 U.S. 520, 535 (1979). To state an Eighth Amendment claim, a plaintiff 24 must allege that the use of force was an “unnecessary and wanton infliction of pain.” Jeffers 25 v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). The malicious and sadistic use of force to 26 cause harm always violates contemporary standards of decency, regardless of whether or 27 -7- 1 not significant injury is evident. Hudson, 503 U.S. at 9; see also Oliver v. Keller, 289 F.3d 2 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis 3 uses of force, not de minimis injuries). However, not “every malevolent touch by a prison 4 guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth 5 6 Amendment's prohibition of cruel and unusual punishments necessarily excludes from 7 constitutional recognition de minimis uses of physical force, provided that the use of force 8 is not of a sort repugnant to the conscience of mankind.” Id. at 9–10. 9 Whether force used by prison officials was excessive for purposes of the Eighth 10 Amendment is determined by inquiring if the “force was applied in a good-faith effort to 11 maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 6–7. The 12 Court must look at the need for application of force; the relationship between that need and 13 14 the amount of force applied; the extent of the injury inflicted; the extent of the threat to the 15 safety of staff and inmates as reasonably perceived by prison officials; and any efforts made 16 to temper the severity of the response. Whitley, 475 U.S. at 321. The absence of significant 17 injury alone is not dispositive of a claim of excessive force. Wilkens, 130 S.Ct. at 1176–77; 18 See Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991) (unprovoked and unjustified attack 19 on prisoner violates constitution regardless of degree of injury). 20 21 Plaintiff’s allegations that while in mechanical restraints he was beaten and sprayed 22 with pepper spray, kicked, twisted and left unwashed for an unspecified period of time may 23 be unreasonable and constitute excessive force where unnecessary and unjustified under 24 the circumstances. Plaintiff provides little if any factual detail regarding the nature of the 25 26 mechanical restraints, the specific events immediately leading up to the use of force, the amount and duration of force applied, and his response to force. See Giles v. Kearney, 571 27 -8- 1 F.3d 318, 330 (3d Cir. 2009) (no excessive force against inmate when guards deny inmate’s 2 request for pain medication, and administer a single shot of pepper spray, as a 3 proportionate response when inmate becomes agitated and refuses to obey orders); see 4 also Fennell v. Gilstrap, 559 F.3d 1212, 1217, (11th Cir. 2009) (finding a jailor’s kick to 5 6 pretrial detainee’s face, resulting in fractures, not to be excessive force under the 7 Fourteenth Amendment where inmate was struggling with other officers and had not yet 8 been secured, and officers immediately offered medical care, the court there noting “use 9 of force does not ‘shock the conscience’ if it is applied in ‘a good-faith effort to maintain or 10 11 restore discipline.’”) It is not clear that Plaintiff suffered physical injury as a result of Defendant’s alleged 12 conduct. Plaintiff’s belief that he has suffered facial infections secondary to being pepper 13 14 sprayed is speculative, conclusory and factually unsupported. 15 The Court will grant Plaintiff an opportunity to amend this claim. In order to state a 16 cognizable claim for excessive force in an amended complaint, Plaintiff must provide truthful 17 facts, not just speculation or suspicion, that support the allegation that, under the 18 circumstances, each named defendant acted unreasonably, maliciously, sadistically, and 19 motivated by a desire to cause harm to Plaintiff. See Dennis v. Huskey, 2008 WL 413772, 20 21 *4, *5 (E.D.Cal. Feb.13, 2008) (Plaintiff provided sufficient factual detail to support the 22 allegation that the defendant slammed the food port door shut maliciously and sadistically 23 for the very purpose of causing harm rather than in a good faith effort to maintain or restore 24 discipline). Plaintiff must also describe in detail what physical injury, if any, he experienced 25 as a result. 26 27 -9- 1 E. 2 Plaintiff claims that Defendant was deliberately indifferent to his serious medical 3 needs.3 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 4 Indifference to Medical Needs inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 5 6 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The 7 two prong test for deliberate indifference requires the plaintiff to show (1) “a serious medical 8 need’ by demonstrating that ‘failure to treat a prisoner's condition could result in further 9 significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant's 10 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin 11 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991)), (overruled on other grounds by WMX 12 13 Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)) (quoting Estelle, 429 U.S. at 104). 14 Deliberate indifference is shown by “a purposeful act or failure to respond to a prisoner's 15 pain or possible medical need, and harm caused by the indifference.” Jett, 439 F.3d at 1096 16 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of the Eighth 17 Amendment, a plaintiff must allege sufficient facts to support a claim that the named 18 defendant(s) “[knew] of and disregard[ed] an excessive risk to [plaintiff's] health ....” Farmer 19 v. Brennan, 511 U.S. 825, 837 (1994). 20 21 22 23 24 25 26 In applying this standard, the Ninth Circuit has held that before it can be said that a 3 It rem ains unclear from the pleadings whether Plaintiff had been convicted of a crim e at the tim e of the alleged violations. As a pretrial detainee, Plaintiff is protected from conditions of confinem ent which am ount to punishm ent. Bell v. W olfish, 441 U.S. 520, 535-36 (1979); Sim m ons v. Navajo County, Ariz., 609 F.3d 1011, 1017-18 (9th Cir. 2010); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1244 (9th Cir. 2010). W hile pretrial detainees’ rights are protected under the Due Process Clause of the Fourteenth Am endm ent, the standard for claim s brought under the Eighth Am endm ent has long been used to analyze pretrial detainees’ conditions of confinem ent claim s. Sim m ons, 609 F.3d at 1017-18; Clouthier, 591 F.3d at 1242; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The law applicable to Plaintiff's m edical indifference claim is the sam e regardless of his custody status. 27 -10- 1 prisoner's civil rights have been abridged, “the indifference to his medical needs must be 2 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 3 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 4 Estelle, 429 U.S. at 105–06). A defendant acts with deliberate indifference when he 5 knowingly fails to respond to a serious medical need, thereby inflicting harm on the plaintiff. 6 Farmer, 511 U.S. 825 at 837-42. Even gross negligence is insufficient to establish 7 8 9 deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 10 Also, “a difference of opinion between a prisoner-patient and prison medical 11 authorities regarding treatment does not give rise to a [Section] 1983 claim.” Franklin v. 12 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To prevail, Plaintiff “must show that the 13 course of treatment the doctors chose was medically unacceptable under the circumstances 14 15 ... and ... that they chose this course in conscious disregard of an excessive risk to plaintiff's 16 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986). A prisoner's mere 17 disagreement with diagnosis or treatment does not support a claim of deliberate 18 indifference. Sanchez v. Veld, 891 F.2d 240, 242 (9th Cir. 1989). 19 20 “Serious Medical needs” encompass conditions that are life-threatening or that carry risks of permanent serious impairment if left untreated, those that result in needless pain 21 22 and suffering when treatment is withheld and those that have been diagnosed by a 23 physician as mandating treatment.” Scarver v. Litscher, 371 F.Supp.2d 986, 999 (W.D.Wis. 24 2005) (citing Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)). See McGuckin, 974 25 F.2d at 1059–60 (“[T]he existence of an injury that a reasonable doctor or patient would find 26 important and worthy of comment or treatment; the presence of a medical condition that 27 -11- 1 significantly affects an individual's daily activities; or the existence of chronic and substantial 2 pain are examples of indications that a prisoner has a ‘serious' need for medical treatment.”) 3 Plaintiff fails to allege an underlying serious medical need. He alleges that he was 4 beaten, sprayed with pepper spray which caused a burning sensation, kicked, twisted, and 5 left unwashed for an unspecified period of time. There are no allegations as to the nature, 6 extent, and duration of any consequent pain, injuries, or distress. Plaintiff has failed to 7 8 allege a serious medical need sufficient to satisfy the first prong of deliberate indifference. 9 There are no facts suggesting that Defendant was deliberately indifferent to Plaintiff's 10 medical needs. Plaintiff alleges that, upon being pepper sprayed, he was “left to burn.” 11 (Compl. at 3.) Nothing before the Court demonstrates that Plaintiff advised Defendant of a 12 serious medical need, or that Defendant was otherwise aware of such and then intentionally 13 denied, delayed, or interfered with treatment, so as to state a claim for deliberate 14 15 indifference. See Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (a prisoner must 16 allege that prison officials actually drew the inference between the [medical condition] and 17 a specific risk of harm). It does not appear that, following the application of force, Plaintiff 18 complained to Defendant of injuries or physical distress, or that Defendant was otherwise 19 20 aware of such. See Reyes v. McGrath, 444 Fed. Appx. 126, 127 (9th Cir. 2011) (deliberate indifference stated where, following use of pepper spray, inmate displays symptoms of 21 22 23 harmful effects, defendants were aware of these symptoms, and refused to provide showers or medical care). 24 Nor do the facts alleged demonstrate that Defendant caused Plaintiff physical harm. 25 Plaintiff’s belief that he has suffered infections secondary to being pepper sprayed, however 26 sincerely held, are speculative, conclusory and factually unsupported. See Bumpus v. 27 -12- 1 Canfield, 495 F.Supp.2d 316, 322 (W.D.N.Y. 2007) (prison physician’s delay of several 2 days in dispensing inmate’s medication did not demonstrate deliberate indifference to 3 inmate’s serious medical needs, where there was no evidence that inmate experienced any 4 complications during the time he was waiting for his prescription to be refilled); see also 5 McGuckin, 974 F.2d at 1060 (where delay in treatment is alleged as basis for deliberate 6 indifference, the prisoner must also demonstrate that the delay led to further injury); see 7 8 9 10 also Jackson v. Meachum, 699 F.2d 578, 583 (1st Cir.1983) (“[to] make the Eighth Amendment a guarantor of a prison inmate's prior mental health ... would go measurably beyond what today would generally be deemed ‘cruel and unusual’”). 11 12 Plaintiff fails to state a medical deliberate indifference claim against Defendant. The Eighth Amendment does not require that prisoners receive “unqualified access to health 13 care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). 14 The Court will allow leave to amend. If Plaintiff chooses to amend, he must set forth 15 16 sufficient facts showing (1) a serious medical need, and (2) a deliberately indifferent 17 response to that need on the part of each defendant. 18 V. 19 CONCLUSION AND ORDER Plaintiff's Complaint does not state a claim for relief under Section 1983. The Court 20 will grant Plaintiff an opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d 21 22 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 23 If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a 24 deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948–49. Plaintiff must set forth 25 “sufficient factual matter ... to ‘state a claim that is plausible on its face.’” Id. at 1949 (quoting 26 Twombly, 550 U.S. at 555.) Plaintiff must also demonstrate that each named defendant 27 -13- 1 personally participated in a deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 2 (9th Cir. 2002). 3 Plaintiff should note that although he has been given the opportunity to amend, it is 4 not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 5 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing 6 the deficiencies set forth above. 7 8 Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint 9 be complete in itself without reference to any prior pleading. As a general rule, an amended 10 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 11 1967). Once an amended complaint is filed, the original complaint no longer serves any 12 function in the case. Therefore, in an amended complaint, as in an original complaint, each 13 claim and the involvement of each defendant must be sufficiently alleged. The amended 14 15 complaint should be clearly and boldly titled “First Amended Complaint” refer to the 16 appropriate case number, and be an original signed under penalty of perjury. Plaintiff's 17 amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the 18 “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level 19 ....” Twombly, 550 U.S. at 555. 20 Based on the foregoing, it is HEREBY ORDERED that: 21 22 1. The Clerk's Office shall send Plaintiff (1) a blank civil rights amended complaint form and 23 (2) a copy of his Complaint, filed January 25, 2012; 24 2. Plaintiff's Complaint is dismissed for failure to state a claim upon which relief may be 25 granted; 26 3. Plaintiff shall file an amended complaint within thirty (30) days from service of this order; 27 -14- 1 and 2 4. If Plaintiff fails to file an amended complaint in compliance with this order, this action shall 3 be dismissed, with prejudice, for failure to state a claim and failure to prosecute, subject to 4 the “three strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio 658 F.3d 5 1090 (9th Cir. 2011). 6 IT IS SO ORDERED. 7 8 Dated: 9 ci4d6 February 28, 2012 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 -15-

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