McCoy v. Garikaparthi et al
Filing
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 10/14/2014. Amended Complaint due by 11/17/2014. (Attachments: # 1 Amended Complaint Form)(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LAKEITH L. MCCOY,
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Plaintiff,
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v.
M. GARIKAPARTHI, et al.,
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Defendants.
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Case No.: 1:13-cv-01495-BAM (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
(ECF No. 1)
THIRTY-DAY DEADLINE
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I.
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Screening Requirement and Standard
Plaintiff LaKeith L. McCoy (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed on
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September 16, 2013, is currently before the Court for screening.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §
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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief
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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §
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1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the pleader is
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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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s
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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.
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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation
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omitted).
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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient
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factual detail to allow the Court to reasonably infer that each named defendant is liable for the
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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v.
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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant
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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the
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plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572
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F.3d at 969.
Plaintiff’s Allegations
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II.
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Plaintiff is currently housed at the California Correctional Institution in Tehachapi, California,
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where the events in the complaint are alleged to have occurred. Plaintiff names the following
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defendants: (1) Dr. M. Garikaparthi; (2) A. Steiber; (3) J. Keeler; and (4) T. Chavez.
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Plaintiff alleges as follows: Plaintiff has a severe allergy to eggs. His guideline for managing
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this allergy stated that it was his responsibility to avoid eggs and food that contained either eggs or egg
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protein. Plaintiff claims that when he receives his meals, eggs are mixed in with other portions of the
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diet. Plaintiff brought this issue to the attention of his primary care provider, Defendant Dr.
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Garikaparthi, in the hopes that he would be provided with food substitutes for the eggs. Defendant Dr.
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Garikaparthi told Plaintiff numerous times that he would not be provided any treatment. On April 4,
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2013, Defendant Dr. Garikaparthi told Plaintiff that he would be monitored regarding his egg allergy,
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but Plaintiff has not been monitored.
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On January 3, 2013, Plaintiff notified the prison’s cooks via an Inmate Request that he was
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allergic to eggs and needed his eggs substituted. On January 15, 2013, Defendant J. Keeler stated that
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Plaintiff needed to provide a copy of his medical chrono and, if substantial, would be accommodated.
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Medical explained to Plaintiff that there was not a medical chrono for an egg allergy. On January 27,
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2013, Plaintiff provided staff with guidelines for managing a food allergy or sensitivity, stating that he
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was allergic to eggs. This memo was given to Plaintiff at a prior prison. On January 31, 2013,
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Defendant T. Chavez stated that no special food substitutions would be provided because it stated so
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in the guidelines.
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On March 11, 2013, Defendant J. Keeler interviewed Plaintiff and told him that if the prison
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had to provide him with any special diet then they would have to do it for everyone with an allergy.
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Plaintiff’s appeal was then denied.
On April 24, 2013, Defendant A. Steiber interviewed Plaintiff and told him that if the prison
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had to provide him with any special diet then it would have to do it for everyone with allergies.
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Defendant Steiber then said that they would remove the eggs from his trays.
On April 25 and 26, 2013, Plaintiff received trays with no eggs. However, after those dates,
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the eggs have been placed back on the trays. Plaintiff alleges that Defendants ignored the fact that not
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only is egg protein contained in numerous other portions of the meals, but once the eggs touch certain
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other food that food becomes contaminated and cannot be consumed. Plaintiff alleges that he is forced
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to receive food from fellow inmates.
On August 18, 2013, Plaintiff removed the eggs from his breakfast tray and gave them to his
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cellmate. The eggs touched other portions of the food on the tray. As Plaintiff began to consume his
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meal, he had an allergic reaction and began vomiting. Adequate food is only provided to Plaintiff
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when he can afford it through the canteen or from other inmates.
Plaintiff asserts that Defendant Dr. Garikaparthi failed properly treat Plaintiff and make sure
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that he was properly fed. Plaintiff further alleges that he is suffering malnourishment, hunger,
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stomach aches, weight loss and emotional distress. He claims violations of the Eighth and Fourteenth
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Amendments to the United States Constitution and seeks compensatory and punitive damages.
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///
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III.
Discussion
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A. Inmate Grievances
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Plaintiff appears to complain about the actions of Defendants Keeler and Steiber in the course
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of reviewing his inmate appeal. However, the prison grievance procedure does not confer any
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substantive rights upon inmates and actions in reviewing appeals cannot serve as a basis for liability
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under section 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993). The complaint therefore
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fails to state a cognizable claim against Defendants Keeler and Steiber based on the administrative
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review process.
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B. Fourteenth Amendment
Plaintiff appears to allege that he is being denied equal treatment in violation of the Fourteenth
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Amendment. The Equal Protection Clause requires that all persons who are similarly situated should
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be treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v. Cleburne
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Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To state an Equal
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Protection claim, Plaintiff must show that the defendants acted with an intent or purpose to
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discriminate against him based on membership in a protected class, Lee, 250 F.3d at 686; Barren v.
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Harrington, 152 F.3d 1193, 1194 (1998), or that similarly situated individuals were intentionally
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treated differently without a rational relationship to a legitimate state purpose, Thornton v. City of St.
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Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct.
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1073, 145 L.Ed.2d 1060 (2000).
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Here, Plaintiff has failed to allege sufficient facts to demonstrate that he is in a protected class
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or that similarly situations individuals were treated differently. Plaintiff will be given leave to cure
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this deficiency.
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C. Eighth Amendment
1. Deliberate Indifference to Serious Medical Needs
“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate
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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096
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(9th Cir.2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251
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(1976)). The two part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious
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medical need’ by demonstrating that failure to treat a prisoner's condition could result in further
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significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant's
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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680
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F.3d 1113, 1122 (9th Cir.2012).
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Deliberate indifference is shown where the official is aware of a serious medical need and fails
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to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir.2010 ).
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Deliberate indifference is a high legal standard. Simmons, 609 F.3d at 1019; Toguchi v. Chung, 391
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F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make
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an inference that “a substantial risk of serious harm exists” and he must make the inference. Farmer v.
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Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994).
A difference of opinion between a prisoner and prison medical authorities as to proper
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treatment does not give rise to a claim. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981);
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Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). Additionally, a difference of opinion between
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medical providers regarding treatment does not amount to deliberate indifference. Sanchez v. Vild,
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891 F.2d 240, 242 (9th Cir. 1989). To state a claim under these conditions requires the plaintiff to
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“show that the course of treatment the doctors chose was medically unacceptable under the
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circumstances, . . . and . . . they chose this course in conscious disregard of an excessive risk to
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plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996).
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Plaintiff has failed to state a cognizable Eighth Amendment claim against Defendant Dr.
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Garikaparthi. At best, Plaintiff has established a difference of opinion regarding the proper treatment
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and monitoring of his egg allergy. Plaintiff also has failed to state a cognizable claim for deliberate
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indifference to medical treatment against any other defendants.
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2. Failure to Provide Adequate Food
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The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners
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not only from inhumane methods of punishment but also from inhumane conditions of confinement.
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Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer, 511 U.S. at 847, and
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Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981)) (quotation marks omitted). Prison
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officials must ensure that inmates receive adequate food, clothing, shelter, medical care and personal
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safety. Farmer, 511 U.S. at 832.
“Adequate food is a basic human need protected by the Eighth Amendment.” Keenan v. Hall,
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83 F.3d 1083, 1091 (9th Cir.1996). The Eighth Amendment requires only that prisoners receive food
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that is adequate to maintain health. LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.1993). However,
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the Ninth Circuit has found that “[t]he sustained deprivation of food can be cruel and unusual
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punishment when it results in pain without any penological purpose.” Foster v. Runnels, 554 F.3d 807,
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812–13 (9th Cir.2009) (finding the denial of sixteen meals in twenty-three days a sufficiently serious
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deprivation for Eighth Amendment purposes).
Although Plaintiff has generally alleged that Defendants continually deprived him of adequate
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food, causing him to suffer malnourishment and pain, Plaintiff has only identified one specific
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instance in which he was served eggs. Further, Plaintiff has not alleged whether or which meals are
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served eggs. In other words, Plaintiff has not adequately alleged a sufficiently serious deprivation to
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state a cognizable claim. Plaintiff will be given leave to cure this deficiency.
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IV.
Conclusion and Order
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Plaintiff’s complaint fails to state a cognizable claim for relief. The Court will grant Plaintiff
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an opportunity to cure the identified deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
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2000).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each
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named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at
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678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be
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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555
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(citations omitted).
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Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims
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in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”
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complaints).
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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.
Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended
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complaint must be “complete in itself without reference to the prior or superseded pleading.” Local
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Rule 220.
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Based on the foregoing, it is HEREBY ORDERED that:
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The Clerk’s Office shall send Plaintiff a complaint form;
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Plaintiff’s complaint is dismissed with leave to amend;
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3.
Within thirty (30) days from the date of service of this order, Plaintiff shall file a first
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amended complaint; and
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4.
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action will be dismissed for failure to obey a court order and failure to state a claim.
If Plaintiff fails to file a first amended complaint in compliance with this order, this
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IT IS SO ORDERED.
Dated:
/s/ Barbara
October 14, 2014
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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