Phelps v. Cate, et al
Filing
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 12/23/2014. Amended Complaint due by 1/26/2015. (Attachments: # 1 Complaint Form)(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK RAYMOND PHELPS,
CASE NO. 1:13-cv-00309-LJO-MJS
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Plaintiff,
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v.
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ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A COGNIZALBE
CLAIM
MATTHEW CATE, et al.,
(ECF NO. 1)
Defendants.
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AMENDED COMPLAINT
THIRTY (30) DAYS
DUE
WITHIN
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Mark Phelps, a state prisoner proceeding pro se and in forma pauperis,
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filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 4, 2013. (ECF No. 1.)
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His complaint is now before the Court for screening.
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II.
SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail “to state a claim upon
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which relief may be granted,” or that “seek monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
or any portion thereof, that may have been paid, the court shall dismiss the case at any
time if the court determines that . . . the action or appeal . . . fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
III.
SUMMARY OF COMPLAINT
Plaintiff identifies (1) Matthew Cate, Secretary of the CDCR, (2) Mike Stainer,
Warden of the California Correctional Institution (“CCI”) at Tehachapi, and correctional
officers: (3) Kristofer Campbell, (4) Jordan Dalton, (5) Steve Gurule, (6) Elizach Rangel,
(7) David Stinson, (8) Derrike Wadkins, (9) Jason Ramirez, and (10) ten unnamed
correctional officers as the defendants.
Plaintiff’s allegations can be summarized
essentially as follows:
On May 19, 2011, two inmates, Charest and Medina, attacked Plaintiff by
stabbing him nine times in the exercise yard. (ECF No. 1 at 18.) The inmates stabbed
Plaintiff using a knife that had been made out of a shelf in the cell of Charest’s cellmate
Boukes. (Id. at 5.)
On the date of the incident, unnamed Defendants and Defendants Dalton, Gurule,
and Rangel were in charge of strip searching Plaintiff, Charest, and Medina prior to
allowing them to enter the exercise yard. (Id. at 18.) Defendants either failed to follow
the proper procedure for searching the inmates or purposefully allowed the knife to be
passed through the security measures.
(Id. at 18-20.)
Additionally, Defendants
Campbell, Dalton, Gurule, and Rangel violated the California Code of Regulations
(“CCR”) by not routinely conducting cell searches which would have revealed that the
shelf in Charest’s cell had been modified. (Id. at 5.) Learning of the modification would
have prevented the knife from being brought into the exercise yard and used to attack
Plaintiff. Plaintiff further alleges he was attacked because he was mistakenly identified
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as a sex offender and because prison guards condone and allow such attacks. (Id. at
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Defendants Stinson, Wadkins, and Ramirez, the Control and Yard Officers on the
date of the incident, saw the attack occur, but failed to use deadly force against the
attackers to stop it. (Id. at 6, 23). As a result, the inmates continued to attack and
attempt to kill Plaintiff. (Id.)
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Defendants Cate and Stainer allowed for the incident to occur by appointing the
other Defendants to their positions and failing to properly train, educate and supervise
them. (Id. at 7, 9.) Further, in retaliation against Plaintiff for filing grievances regarding
the incident, they required him to remain in administrative segregation for an extra 191
days, from September 11, 2011 until April 26, 2012. (Id. at 8).
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As a result of the attack, Plaintiff sustained both physical injuries and
psychological and emotional damage.
Plaintiff seeks damages, medical costs, and
attorney’s fees and costs for Defendants’ violations of his Eighth and Fourteenth
Amendment rights.
IV.
ANALYSIS
A.
Section 1983
Section 1983 “provides a cause of action for the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution and laws’ of the United States.”
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method
for vindicating federal rights conferred elsewhere.’” Graham v. Connor, 490 U.S. 386,
393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).
To state a claim under Section 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution and laws of the United States was
violated and (2) that the alleged violation was committed by a person acting under the
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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ketchum v.
Cnty. of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987).
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff
must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. Facial plausibility demands more than the mere possibility
that a defendant committed misconduct and, while factual allegations are accepted as
true, legal conclusions are not. Id.
B.
Eighth Amendment – Failure to Protect
The Eighth Amendment “protects prisoners . . . from inhumane methods of
punishment . . . [and] inhumane conditions of confinement.” Morgan v. Morgensen, 465
F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and
severe, prison officials must provide prisoners with adequate food, clothing, shelter,
sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832
(1994). They also have a duty to take reasonable steps to protect inmates from physical
harm by other inmates. Id. at 833.
To establish a violation of this duty, the prisoner must establish that prison
officials were “deliberately indifferent” to serious threats to the inmate's health or safety.
Id. at 834. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391
F.3d 1051, 1060 (9th Cir. 2004). “‘If a [prison official] should have been aware of the
risk, but was not, then the [official] has not violated the Eighth Amendment, no matter
how severe the risk.’” Id. at 1057 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175,
1188 (9th Cir. 2002)).
The prisoner must show that “the official [knew] of and
disregard[ed] an excessive risk to inmate . . . safety; the official must both be aware of
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facts from which the inference could be drawn that a substantial risk of serious harm
exists, and [the official] must also draw the inference.” Id. at 837; Anderson v. Cnty. of
Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, the prisoner
may rely on circumstantial evidence; in fact, the very obviousness of the risk may be
sufficient to establish knowledge. Farmer, 511 U.S. at 842.
Plaintiff’s allegations do not support a claim against Defendants Campbell, Dalton,
Gurule, and Rangel for violation of the Eighth Amendment. There are no facts pled to
suggest these Defendants knew that inmates Charest, Medina, and Boukes were
planning an attack or otherwise presented a substantial risk of harm to Plaintiff’s safety.
Plaintiff’s allegations that Defendants condoned the attack because Plaintiff was
perceived to be a sex offender and that their alleged failure to conduct regular cell
searches enabled the attack with the knife are purely speculative and unsupported by
any facts. Plaintiff has not stated an Eighth Amendment claim against these Defendants
in Count I.
Plaintiff also alleges in Count I that ten other unnamed Defendants and
Defendants Dalton, Gurule, and Rangel violated his Eighth Amendment rights by either
failing to properly search inmates or purposefully allowing the knife to be passed
through.
But again, Plaintiff pleads no facts which might be said to support his
speculations in these regards or any facts suggesting that any of the Defendants knew
or should have known of the knife or of any intent to attack Plaintiff. Plaintiff has not pled
an Eighth Amendment violation against these Defendants.
In Count II, Plaintiff alleges that Defendants Stinson, Wadkins, and Ramirez failed
to protect him by not using deadly force against inmates Charest and Medina. “A prison
official’s duty under the Eighth Amendment is to ensure reasonable safety, a standard
that incorporates due regard for prison officials’ unenviable task of keeping dangerous
men in safe custody under humane conditions.” Id. at 844-45 (internal quotation marks
and citations omitted). Thus, “prison officials who actually knew of a substantial risk to
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inmate health or safety may be found free from liability if they responded reasonably to
the risk, even if harm ultimately was not averted.” Id. at 844. Here, the documents
attached to Plaintiff’s complaint support that the Defendants saw the attack and
responded to it. Officer Ramirez sounded the alarm to warn other guards of the attack,
Officer Stinson observed the fight on the monitors and opened the doors for responding
officers, and Officer Wadkins ordered inmates Charest and Medina to stop attacking
Plaintiff and fired upon them four times, striking them both once. (See ECF No. 1 at 9698.) While Defendants’ efforts to stop the attack did not immediately stop it, nothing in
the pleadings suggests they failed to respond reasonably under all the circumstances.
Plaintiff’s opinion that they should have used deadly force against the attackers appears
to be simply his untrained, lay opinion.
The attack on Plaintiff was unquestionably horrific. However, the Constitution
offers redress in such circumstances only if prison officials are shown to have been
deliberately indifferent to it.
Here, the pleadings suggest just the opposite -- that
Defendants acted promptly in response to a surprise attack on Plaintiff. Given their
response as reflected in the pleading documents, leave to amend Count II would be
futile and will be denied.
The Court will grant Plaintiff leave to amend Count I. Any amended complaint
must fully address the above issues and omissions and explain the circumstances
underlying Plaintiff’s claim in more detail. The facts alleged must demonstrate that each
Defendant knowingly disregarded an excessive risk of harm to Plaintiff.
C.
State Law Negligence Claim
Plaintiff also claims that Defendants Campbell, Dalton, Gurule, Rangel, Stinson,
Wadkins, Ramirez, and the 10 unnamed Defendants were negligent in their duties by
failing to protect him from the attack.
“Under California law, [t]he elements of negligence are: (1) defendant's obligation
to conform to a certain standard of conduct for the protection of others against
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unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a
reasonably close connection between the defendant's conduct and resulting injuries
(proximate cause); and (4) actual loss (damages).” Corales v. Bennett, 567 F.3d 554,
572 (9th Cir. 2009) (quoting McGarry v. Sax, 158 Cal.App.4th 983, 994 (Ct. App. 2008)
(internal quotations omitted)).
Under the California Tort Claims Act (“CTCA”), Plaintiff may not maintain an
action for damages against a public employee unless he has presented a written claim
to the state Victim Compensation and Government Claims Board within six months of
accrual of the action. Cal. Gov't Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v.
California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995).
Failure to
demonstrate such compliance constitutes a failure to state a cause of action and will
result in the dismissal of state law claims. State of California v. Superior Court (Bodde),
32 Cal.4th 1234, 1240 (2004).
Plaintiff cannot base a negligence claim on the above allegations against
Defendants because he has not demonstrated compliance with CTCA claim filing
requirements.
D.
Linkage Requirement
Under Section 1983, Plaintiff must demonstrate that each Defendant personally
participated in the deprivation of his rights. See Jones v. Williams, 297 F.3d 930, 934
(9th Cir. 2002). In other words, there must be an actual connection or link between the
actions of the Defendants and the deprivation alleged to have been suffered by Plaintiff.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 695 (1978).
Plaintiff names 10 unnamed Defendant correctional officers in this action.
If
Plaintiff wishes to proceed against these ten individuals, he must separate them and
provide a unique identifier for each individual, e.g. John Doe 1, 2, 3, etc. Additionally, if
Plaintiff wishes to amend his complaint, he must specifically link each unnamed
Defendant to an alleged deprivation of his rights.
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E.
California Code of Regulations
To the extent that Plaintiff alleges Defendants violated Title 15 of the CCR, he
does not state a cause of action. The existence of the CCR does not necessarily entitle
an inmate to sue civilly. The Court has found no authority to support a finding of an
implied private right of action under Title 15, and Plaintiff has provided none. Several
district court decisions hold that there is no such right. See e.g., Vasquez v. Tate, No.
1:10-cv-1876-JLT (PC), 2012 WL 6738167, at *9 (E.D. Cal. Dec. 28, 2012); Davis v.
Powell, 901 F. Supp. 2d 1196, 1211 (S.D. Cal. 2012). Because Plaintiff may not bring
an independent claim solely for violation of prison regulations set out in Title 15, leave to
amend such a claim is futile and will be denied on that basis.
F.
Supervisory Liability
Government officials may not be held liable for the actions of their subordinates
under a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691, 691 (1978). Since a government official cannot be held liable under a theory of
vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing that the
official has violated the Constitution through his own individual actions by linking each
named Defendant with some affirmative act or omission that demonstrates a violation of
Plaintiff's federal rights. Iqbal, 556 U.S. at 676.
Liability may be imposed on supervisory defendants under § 1983 only if the
supervisor: (1) personally participated in the deprivation of constitutional rights or
directed the violations or (2) knew of the violations and failed to act to prevent them.
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989). Defendants Cate and Stainer cannot be held liable for being generally
deficient in their supervisory duties. Plaintiff must allege facts that these Defendants
either directed their subordinate correctional officers to permit the attack, knew of the
attack and failed to prevent it, or otherwise committed some affirmative act or omission
that resulted in a violation of Plaintiff’s Constitutional rights.
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The Court will grant Plaintiff leave to amend his complaint to state a claim against
these Defendants. To do so, Plaintiff needs to set forth sufficient facts showing that
Warden Stainer and ex-Secretary Cate personally took some action that violated his
constitutional rights. Mere supervision of individuals responsible for a violation is not
sufficient.
G.
Failure to Train
A supervisor's failure to train subordinates may give rise to individual liability
under § 1983 where the failure amounts to deliberate indifference to the rights of
persons with whom the subordinates are likely to come into contact. Canell v. Lightner,
143 F.3d 1210, 1213-14 (9th Cir. 1998). To impose liability under this theory, a plaintiff
must demonstrate that the subordinate’s training was inadequate, that the inadequate
training was a deliberate choice on the part of the supervisor, and that it caused a
constitutional violation. See id. at 1214; See also City of Canton v. Harris, 489 U.S. 378,
387-90 (1989); Lee v. City of Los Angeles, 250 F.3d 668, 681-82 (9th Cir. 2001).
In Count III, Plaintiff alleges that Defendants Cate and Stainer failed to train the
other defendants, but he does not allege facts that suggest these Defendants
deliberately provided inadequate training, policies, and supervision for the purpose of
creating a constitutional violation. Plaintiff will be given leave to amend.
H.
Administrative Segregation
In Count IV, Plaintiff alleges that his First, Eighth, and Fourteenth Amendment
rights were violated when he was placed in segregation for an additional 191 days for
filing grievances and requests for information regarding the attack against him.
1. First Amendment Retaliation
“Within the prison context, a viable claim of First Amendment retaliation entails
five basic elements: (1) An assertion that a state actor took some adverse action against
an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)
chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005).
Plaintiff adequately alleges that: 1) Defendants took an adverse action against
him by placing him in segregation, 2) he filed and pursued a grievance, a protected
action under the First Amendment, and 3) he was transferred to an environment where
he was confined for 23 hours per day and deprived of regular prisoner privileges, an
action that would chill a person of ordinary firmness from repeating the actions which
caused the transfer. See Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr. v.
Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999).
However, Plaintiff fails to allege facts to fulfill the pleading requirements for either
the second or the fifth element. With respect to the second, Plaintiff must allege that his
protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s
conduct.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Sorrano’s
Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). And, with respect to the
fifth, Plaintiff must affirmatively allege facts that show “‘the prison authorities’ retaliatory
action did not advance legitimate goals of the correctional institution or was not tailored
narrowly enough to achieve such goals.” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.
1985). Plaintiff will be granted leave to amend to allege both of these elements.
2. Eighth Amendment Cruel and Unusual Punishment
The Eighth Amendment’s prohibition against cruel and unusual punishment
protects prisoners not only from inhumane methods of punishment but also from
inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th
Cir. 2006) (citations omitted). “[A] prison official may be held liable under the Eighth
Amendment for denying humane conditions of confinement only if he knows that inmates
face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847.
Plaintiff has failed to explain why his placement in segregation posed a
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substantial risk of harm to him and how Defendants were deliberately indifferent to this
harm. If Plaintiff wishes to amend, he must allege facts accordingly.
3. Fourteenth Amendment Due Process
Lastly, Plaintiff alleges that he was placed in segregation without sufficient due
process of law. The Due Process Clause protects Plaintiff against the deprivation of
liberty without the procedural protections to which he is entitled under the law. Wilkinson
v. Austin, 545 U.S. 209, 221 (2005). To state a claim, Plaintiff must first identify the
interest at stake. Id. Liberty interests may arise from the Due Process Clause or from
state law. Id. The Due Process Clause itself does not confer on inmates a liberty
interest in avoiding more adverse conditions of confinement, id. at 221–22 (citations and
quotation marks omitted), and under state law, the existence of a liberty interest created
by prison regulations is determined by focusing on the nature of the condition of
confinement at issue. Id. at 222–23 (citing Sandin v. Conner, 515 U.S. 472, 481–84
(1995)). Liberty interests created by prison regulations are generally limited to freedom
from restraint which imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (quoting Sandin, 515
U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
Not all segregated housing gives rise to a protected liberty interest. See Sandin,
515 U.S. at 485 (no liberty interest protecting against a 30-day assignment to disciplinary
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segregation because it did not “present a dramatic departure from the basic conditions of
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[the inmate's] sentence”). Whether prison conditions give rise to a protected liberty
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interest requires an evaluation of (1) whether the challenged conditions mirror those
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imposed under the prison’s discretionary authority; (2) the duration of the condition and
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the degree of restraint imposed; and (3) whether the state’s action will invariably affect
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the duration of the prisoner's sentence. Serrano v. Francis, 345 F.3d 1071, 1078 (9th
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Cir. 2003). Plaintiff has not alleged sufficient facts for the Court to determine whether his
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continued placement in segregation imposed atypical and significant hardship in relation
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to the ordinary incidents of prison life. Sandin, 515 U.S. at 485; Wilkinson, 545 U.S. at
221; Myron, 476 F.3d at 718. He has not alleged the circumstances under which he was
housed in segregation, the degree of restraint, or how, if at all, this affected his
sentence. Plaintiff will be granted leave to amend.
V.
CONCLUSION AND ORDER
Plaintiff’s Complaint does not state a claim for relief. The Court will grant Plaintiff
an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49
(9th Cir. 1987). Plaintiff should note that although he has been given the opportunity to
amend, it is not for the purposes of adding new claims. Roth v. Garcia Marquez, 942
F.2d 617, 628-629 (9th Cir. 1991). Plaintiff should carefully read this Screening Order
and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended
complaint be complete in itself without reference to any prior pleading. As a general
rule, an “amended complaint supersedes the original” complaint. See Loux v. Rhay, 375
F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint
no longer serves any function in the case. Therefore, in an amended complaint, as in an
original complaint, each claim and the involvement of each defendant must be
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sufficiently alleged. The amended complaint should be clearly and boldly titled “First
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Amended Complaint,” refer to the appropriate case number, and be an original signed
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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.
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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a
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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations
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omitted).
Accordingly, it is HEREBY ORDERED that:
1.
The Clerk’s Office shall send Plaintiff a blank civil rights complaint form;
2.
Plaintiff’s Complaint is dismissed for failure to state a claim upon which
relief may be granted;
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3.
Plaintiff shall file an amended complaint within thirty (30) days; and
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If Plaintiff fails to file an amended complaint in compliance with this order,
the Court will recommend that this action be dismissed, with prejudice, for failure to state
a claim and failure to comply with a court order.
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IT IS SO ORDERED.
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Dated:
December 23, 2014
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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