Takechi v. Adame et al
Filing
17
ORDER DISMISSING 1 Complaint, WITH LEAVE TO AMEND, for Failure to State a Claim upon which Relief may be Granted; Thirty Day Deadline signed by Magistrate Judge Gerald B. Cohn on 8/23/2012. First Amended Complaint due by 9/26/2012. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
JAMES H. TAKECHI,
10
Plaintiff,
11
v.
12
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED
G. ADAME, et al.,
13
CASE NO. 1:12-cv-00913-AWI-GBC (PC)
Defendants.
Doc. 1
/ THIRTY-DAY DEADLINE
14
15
16
Screening Order
17
I. Procedural History, Screening Requirement, and Standard
18
On October 31, 2011, Plaintiff James H. Takechi (“Plaintiff”), a state prisoner proceeding
19
pro se and in forma pauperis, filed this civil rights action filed this civil rights action pursuant to 42
20
U.S.C. § 1983. Doc. 1. On February 28, 2012, the United States District Court, for the Northern
21
District of California, San Francisco Division, directed service of Plaintiff’s complaint, finding a
22
cognizable claim against Defendants G. Adame and J. Tyree for due process gang validation. Doc.
23
5. On May 31, 2012, the Court transferred this action to the United States District Court for the
24
Eastern District of California, Fresno Division1 since the allegations in the complaint took place at
25
California Correctional Institution in Kern County (“CCI”).2 Doc. 9.
26
27
1
The prior case number was 3:11-cv-05285-RS (PC).
28
2
Plaintiff is now incarcerated at Pelican Bay State Prison in Crescent City, California.
Page 1 of 11
1
The Court is required to screen complaints brought by prisoners seeking relief against a
2
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
3
Court must dismiss a complaint, or portion thereof, if the prisoner has raised claims that are legally
4
“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
5
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
6
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
7
dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
8
claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added).
9
A complaint must contain “a short and plain statement of the claim showing that the pleader
10
is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
11
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
12
do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
13
550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted inferences,” Doe I
14
v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted
15
as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
16
While prisoners proceeding pro se in civil rights actions are still entitled to have their
17
pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is
18
now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must
19
demonstrate that each defendant personally participated in the deprivation of his rights. Jones v.
20
Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations
21
sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,
22
572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this
23
plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
24
Section 1983 provides a cause of action for the violation of constitutional or other federal
25
rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971
26
(9th Cir. 2011); Jones, 297 F.3d at 934. For each defendant named, plaintiff must show a causal link
27
between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at
28
678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554,
Page 2 of 11
1
570 (9th Cir. 2009). There is no respondeat superior liability under § 1983, and each defendant may
2
only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 677-79; Ewing
3
v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
4
II. Plaintiff’s Complaint
5
In Plaintiff’s complaint, he names Defendants G. Adame, Correctional Officer, and J. Tyree,
6
Correctional Sergeant at CCI. Compl. at 1, Doc. 1. Plaintiff also attached exhibits to his complaint.
7
Id. at 6-24.
8
On March 12, 2009, interviews were held of all inmates and a confidential source alleged
9
Plaintiff as a gang member associate. Id. at 7. A confidential memorandum authored by Officer T.
10
Turmezei identified Plaintiff inmate James Takechi aka “Silent” as being a member of “Mesa,”
11
which is a group of inmates who oversee activities of the Mexican Mafia (EME). Id. at 7, 10, 16. On
12
March 15, 2009, Defendant Adame began an investigation into Plaintiff’s alleged association with
13
the Mexican Mafia prison gang. Id. at 3, 17. Defendant Adame reported that on September 29, 2003,
14
Plaintiff was initially validated as an active associate, based on six source items dated in 2000 and
15
2001. Id. at 17. On October 10, 2007, Plaintiff was validated as an inactive associate. Id. at 17, 19.
16
Defendant Adame recommended to change Plaintiff’s status from validated inactive to validated
17
active associate with the Mexican Mafia (EME) prison gang. Id. at 17. On March 16, 2009,
18
Defendant Adame completed his investigation and concluded there was sufficient evidence to
19
validate Plaintiff as a gang associate, based on information from a confidential source. Id. at 3, 18.
20
On March 18, 2009, Plaintiff was taken from general population and needlessly placed on
21
contraband watch for four days. Id. at 3.
22
On March 20, 2009, Defendant Adame served Plaintiff with written notice of the reason for
23
segregation and the 1030 Confidential Information Disclosure, but Plaintiff did not have use of his
24
hands while in contraband watch. Id. at 3, 7, 16. In the validation chrono, Defendant Adame reported
25
that Plaintiff refused to sign the validation interview notification and disclosure form, but Plaintiff
26
did state that he understood the source items. Id. at 17, 18. Defendant Adame stated that Plaintiff was
27
provided 72 hours to review the source items being submitted to validation. Id. at 17. Defendant
28
Adame reported that the confidential source was considered reliable because the confidential source
Page 3 of 11
1
has previously provided information which proved to be true. Id. at 16. Plaintiff said he had no
2
knowledge of any gang activity and how did the confidential informant obtain that information. Id.
3
at 17.
4
On March 22, 2009, Plaintiff was taken to segregation. Id. at 4. On March 23, 2009,
5
Defendants Adame and Tyree arrived for Plaintiff’s hearing / interview. Id. at 4. Plaintiff told them
6
that he did not know the charges against him and he had not been re-issued the written notice. Id.
7
Defendant Adame told Plaintiff it was “now or never” and gave him an abbreviated description of
8
the charges. Id. Plaintiff told him that the information from the confidential source was false and
9
requested that Adame personally question the confidential source. Id. Defendant Adame declined
10
to personally question the confidential source. Id. Defendant Adame forwarded the validation
11
package to Office of Correctional Safety (“OCS”) for approval without first providing Plaintiff with
12
a required copy of the interview or written notice of the charges. Id. On March 25, 2009, Plaintiff
13
was removed from inactive status and re-validated as an active Mexican Mafia (EME) prison gang
14
associate. Id. at 4, 10, 19. On April 3, 2009, Plaintiff was sentenced to an indeterminate Security
15
Housing Unit (“SHU”) term. Id. at 4.
16
On April 19, 2009, Plaintiff filed an appeal against Defendant Tyree, who is Adame’s
17
supervisor. Id. at 4, 22. Plaintiff stated he had not received his property. Id. Plaintiff also stated that
18
his 1030 Confidential Information Disclosure was apparently lost because it was served to him in
19
contraband watch (CW), and per CW policy, they are not allowed to have anything on their persons.
20
Id. On April 20, 2009, Defendant Tyree granted the appeal, stating that Plaintiff’s property, not
21
deemed contraband, was returned, and Tyree issued Plaintiff a copy of the written notice of the
22
charges against him. Id.
23
On April 30, 2009, the Institutional Classification Committee (“ICC”) held a SHU initial
24
review in absentia, as Plaintiff refused to attend the hearing. Id. at 20. The ICC elected to double cell
25
Plaintiff with other validated gang members or associates of the Mexican Mafia (EME) gang for an
26
indeterminate SHU pending transfer or 180 day review. Id.
27
On June 2, 2009, J. Gutierrez, Correctional Captain for the Investigative Services Unit, and
28
K. Holland, Chief Deputy Warden for CCI, denied Plaintiff’s inmate appeal at the second level of
Page 4 of 11
1
review. Id. at 10-12. In the decision by Gutierrez, he stated that Plaintiff is requesting to be removed
2
from active Mexican Mafia prison gang status; that the confidential source take a polygraph test; and
3
that Plaintiff have access to any information from other confidential sources that contradict the
4
confidential source in Plaintiff’s case. Id. at 10. Gutierrez also quoted from state regulations:
5
§ 3321. Confidential Material.
6
(c) A confidential source’s reliability may be established by one or
more of the following criteria:
7
8
(1) The confidential source has previously provided information
which proved to be true.
9
§ 3378. Documentation of Critical Case Information.
10
14
(f) A gang member or associate, who is categorized as inactive or
validated as a dropout of a prison gang and released from a SHU, may
be removed from the general population or any other placement based
upon one reliable source item identifying the inmate as an active gang
member or associate of the prison gang with which the inmate was
previously validated. The source item must identify the inmate as a
gang member or associate based on information developed after his
or her release from SHU. The source item need not be confidential,
but must meet the test of reliability established at section 3321.
15
Id. at 10-11; Cal. Code Regs. tit. 15, §§ 3321(c); 3378(f). The confidential source met the criteria
16
established in § 3321, in that the confidential source has provided reliable information in the past.
17
Id. This single piece of evidence met the criteria for § 3378(f). Id. at 11. Plaintiff requested to be
18
released from the SHU, but in accordance with Cal. Code Regs. tit. 15, § 3341.5, the Departmental
19
Review Board may authorize release from the SHU for gang members or associates categorized as
20
inactive. Id. Plaintiff was afforded all due process rights, in accordance with Cal. Code Regs. tit. 15,
21
§ 3378. Id.
11
12
13
22
On August 24, 2009, N. Grannis, Inmate Appeals Branch, denied Plaintiff’s inmate appeal
23
at the third (director’s) level of review. Id. at 13-14. In the decision by Grannis, he noted that the
24
source items were again reviewed by Institutional Gang Investigator (“IGI”) staff. Id. at 13. The
25
documents were submitted to the Office of Correctional Safety (“OCS”), and the source item met
26
the requirement for validation by OCS.
27
Defendant Adame violated Plaintiff’s right to due process for gang validation, which led to
28
Plaintiff’s indeterminate SHU term, for failing to follow procedure or meet the “some evidence”
Page 5 of 11
1
standard. Id. at 4. This caused Plaintiff mental and emotional distress. Id. Defendant Tyree witnessed
2
Adame’s illegal actions and failed to correct the misconduct, also violating Plaintiff’s due process
3
rights and causing mental and emotional distress. Id.
4
5
Plaintiff seeks declaratory relief; expungement of the wrongful validation; and punitive
damages of $50,000 against each Defendant. Id. at 3.
6
III. Legal Standard and Analysis for Plaintiff’s Claims
7
A. Fourteenth Amendment Due Process / Gang Member Validation
8
9
Plaintiff states he was deprived of due process when validated as an associate of the Mexican
Mafia (EME) gang.
10
Plaintiff has not identified a protected liberty interest with respect to remaining free from the
11
validation, and Plaintiff has not identified any due process violations with respect to his validation.
12
The Due Process Clause protects Plaintiff against the deprivation of liberty without the procedural
13
protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To
14
state a claim, Plaintiff must first identify the interest at stake. Wilkinson, 545 U.S. at 221. Liberty
15
interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself
16
does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement,
17
id. at 221-22, and under state law, the existence of a liberty interest created by prison regulations is
18
determined by focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing
19
Sandin v. Conner, 515 U.S. 472, 481-84 (1995)). Liberty interests created by prison regulations are
20
generally limited to freedom from restraint which imposes atypical and significant hardship on the
21
inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing Sandin,
22
515 U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
23
If a protected interest is identified, the inquiry then turns to what process is due. Wilkinson,
24
545 U.S. at 224. The validation of gang members and affiliates is an administrative measure rather
25
than a disciplinary measure, and as a result, prisoners are entitled only to the minimal procedural
26
protections of adequate notice, an opportunity to be heard, and periodic review. Bruce v. Ylst, 351
27
F.3d 1283, 1287 (9th Cir. 2003). In addition to those minimal protections, there must be some
28
evidence with an indicia of reliability supporting the decision. Bruce, 351 F.3d at 1287; Cato v.
Page 6 of 11
1
Rushen, 824 F.2d 703, 705 (9th Cir. 1987).
2
California’s policy of assigning suspected gang affiliates to the secured housing unit (“SHU”)
3
is not a disciplinary measure, but rather an administrative strategy designed to preserve order in the
4
prison and to protect the safety of all inmates. Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir.
5
1997). A prison gang validation proceeding is subject to the “some evidence” standard where it is
6
an administrative strategy rather than a disciplinary action. Bruce, 351 F.3d at 1287-88 (citing
7
Superintendent v. Hill, 472 U.S. 445, 455 (1985)). There is no independent assessment of witness
8
credibility or re-weighing of evidence; rather “the relevant question is whether there is any evidence
9
in the record that could support the conclusion.” Hill, 472 U.S. at 455-56.
10
According to the information in Plaintiff’s complaint, on March 12, 2009, interviews were
11
held of all inmates and a confidential source alleged Plaintiff as a gang member associate. Compl.
12
at 7. On March 20, 2009, Defendant Adame served Plaintiff with written notice of the reason for
13
segregation and the 1030 Confidential Information Disclosure. Id. at 3, 7, 16. Defendant Adame
14
reported that the confidential source was considered reliable because the confidential source has
15
previously provided information which proved to be true. Id. at 16. In the validation chrono,
16
Defendant Adame reported that Plaintiff refused to sign the validation interview notification and
17
disclosure form, but Plaintiff did state that he understood the source items. Id. at 17, 18. On March
18
23, 2009, Defendants Adame and Tyree arrived for Plaintiff’s hearing / interview. Id. at 4. Plaintiff
19
told them that he did not know the charges against him and he had not been re-issued the written
20
notice. Id. Defendant Adame told Plaintiff it was “now or never” and gave him an abbreviated
21
description of the charges. Id. On March 25, 2009, Plaintiff was removed from inactive status and
22
re-validated as an active Mexican Mafia (EME) prison gang associate. Id. at 4, 10, 19. On April 30,
23
2009, the ICC held a SHU initial review in absentia, as Plaintiff refused to attend the hearing. Id. at
24
20. The ICC elected to double cell Plaintiff with other validated gang members or associates of the
25
Mexican Mafia (EME) gang for an indeterminate SHU pending transfer or 180 day review. Id.
26
From the information provided in Plaintiff’s complaint, it appears that he had the “minimal
27
procedural protections” of adequate notice and an opportunity to be heard five days prior to re-
28
validation. The existence of the confidential source provides “some evidence” to support Plaintiff’s
Page 7 of 11
1
gang validation. In addition, the ICC held a periodic review for Plaintiff’s SHU term. Thus,
2
Plaintiff’s complaint demonstrates that he had sufficient notice, an opportunity to be heard, and
3
periodic review, although he refused to sign the documents or attend his initial SHU hearing. Bruce,
4
351 F.3d at 1287. In addition, Defendant Adame reported that the confidential source was considered
5
reliable because the confidential source has previously provided information which proved to be true,
6
which satisfies the “some evidence” standard and an “indicia of reliability” supporting the decision.
7
Bruce, 351 F.3d at 1287-88 (citing Hill, 472 U.S. at 455-56); Cato v. Rushen, 824 F.2d at 705.
8
To state a claim, Plaintiff must demonstrate the existence of a liberty interest and a denial
9
of due process. Plaintiff’s claim fails because he does not identify an atypical and significant
10
hardship pursuant to Wilkinson and he does not show that he lacked minimal procedural protections
11
pursuant to Bruce. Therefore, Plaintiff fails to state a cognizable claim against Defendants based
12
upon Fourteenth Amendment Due Process / Gang Member Validation.
13
B. Inmate Appeals Process
14
Defendants’ actions in responding to Plaintiff’s appeals, alone, cannot give rise to any claims
15
for relief under section 1983 for violation of due process. “[A prison] grievance procedure is a
16
procedural right only, it does not confer any substantive right upon the inmates.” Buckley v. Barlow,
17
997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982));
18
see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of
19
appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641,
20
647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann
21
v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty
22
interest requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568
23
F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a
24
prisoner’s administrative appeal cannot serve as the basis for liability under § 1983. Buckley, 997
25
F.2d at 495. Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief
26
under § 1983 based upon the inmate appeals process.
27
//
28
//
Page 8 of 11
1
C. Violation of State Prison Rules and Regulations
2
Violations of state prison rules and regulations, without more, do not support any claims
3
under section 1983. Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001); Sweaney v. Ada County,
4
Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). Only if the events complained of rise to the level of a
5
federal statutory or constitutional violation may Plaintiff pursue them under section 1983. Patel, 648
6
F.3d at 971; Jones, 297 F.3d at 934. Thus, complaints that prison officials violated state regulations
7
regarding the inmate appeals process or prison disciplinary proceedings, for example, will not
8
support a claim for relief under § 1983.
9
D. Expungement of Records from Plaintiff’s Central File
10
The Ninth Circuit has not found that prisoners have an independent right, grounded in the
11
Due Process Clause, to an accurate prison record. See Hernandez v. Johnston, 833 F.2d 1316,
12
1318-19 (9th Cir. 1987); see Johnson v. Rodriguez, 110 F.3d 299, 308-09 & n.13 (5th Cir. 1997).
13
Liberty interests created by prison regulations are limited to freedom from restraint which “imposes
14
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
15
Sandin, 515 U.S. at 484. Accordingly, the Court finds that Plaintiff fails to state a cognizable claim
16
for relief under § 1983 based upon expungement of records from his central file.
17
E. Intentional and Negligent Infliction of Emotional Distress
18
Under California law, the elements of intentional infliction of emotional distress are: (1)
19
extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard
20
of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
21
emotional distress; and (3) actual and proximate causation of the emotional distress by the
22
defendant’s outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009); Tekkle v.
23
United States, 567 F.3d 554, 855 (9th Cir. 2007); Simo v. Union of Needletrades, Industrial &
24
Textile Employees, 322 F.3d 602, 621-22 (9th Cir. 2003). Conduct is outrageous if it is so extreme
25
as to exceed all bounds of that usually tolerated in a civilized community. Corales, 567 F.3d at 571;
26
Tekkle, 511 F.3d at 855; Simo, 322 F.3d at 622.
27
The negligent infliction of emotional distress is not an independent tort but the tort of
28
negligence to which the traditional elements of duty, breach of duty, causation and damages apply.
Page 9 of 11
1
Wong v. Tai Jin, 117 Cal. Rptr.3d 747, 767 (Cal. Ct. App. 2010); Potter v. Firestone Tire & Rubber
2
Co., 6 Cal.4th 965, 984 (Cal. 1993); Burgess v. Superior Court, 2 Cal.4th 1064, 1072 (Cal. 1992).
3
Where there is no personal, physical injury, the emotional distress must have been serious, which
4
is the functional equivalent to severe emotional distress. Schwarz v. Lassen County ex rel. Lassen
5
County Jail (Detention Facility), 2011 WL 3319626, at *9 (E.D. Cal. Aug. 1, 2011) (citing Wong,
6
117 Cal. Rptr.3d at 768).
7
Plaintiff fails to state a claim for intentional infliction of emotional distress, as he does not
8
allege conduct that is so outrageous and so extreme as to exceed all bounds of that usually tolerated
9
in a civilized community. Corales, 567 F.3d at 571; Tekkle, 511 F.3d at 855; Simo, 322 F.3d at 622.
10
Plaintiff also fails to state a claim for negligent infliction of emotional distress, as he does not allege
11
conduct that would cause severe emotional distress. Schwarz, 2011 WL 3319626, at *9 (citing Wong,
12
117 Cal. Rptr.3d at 768). Accordingly, the Court finds that Plaintiff fails to state a cognizable claim
13
for intentional or negligent infliction of emotional distress against Defendants. The Court notes that
14
the prior order from the United States District Court, for the Northern District of California, San
15
Francisco Division, found that Plaintiff failed to state a claim for mental or emotional distress and
16
dismissed those claims. Doc. 5.
17
IV. Conclusion and Order
18
Plaintiff’s complaint fails to state any claims upon which relief may be granted. The Court
19
will provide Plaintiff with the opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d
20
1122, 1130 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
21
Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended
22
complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
23
Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
24
each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556
25
U.S. at 676-77. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a
26
right to relief above the speculative level . . .” Twombly, 550 U.S. at 555.
27
Finally, an amended complaint supersedes the prior complaint, Forsyth v. Humana, Inc., 114
28
F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and it must be
Page 10 of 11
1
“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. Ferdik
2
v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (reference to original and first amended complaints
3
was precluded by doctrine that an amended pleading supersedes the original pleading). Therefore,
4
“[a]ll causes of action alleged in an original complaint which are not alleged in an amended
5
complaint are waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d
6
811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
7
Based on the foregoing, it is HEREBY ORDERED that:
8
1.
9
Plaintiff’s complaint is DISMISSED for failure to state a claim upon which relief
may be granted;
10
2.
The Clerk’s Office shall send Plaintiff a complaint form;
11
3.
Within thirty (30) days from the date of service of this order, Plaintiff shall file a
12
first amended complaint; and
13
4.
14
If Plaintiff fails to file a first amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.
15
16
IT IS SO ORDERED.
17
18
Dated:
7j8cce
August 23, 2012
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28
Page 11 of 11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?