Stine v. Federal Bureau of Prisons
Filing
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ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 12/28/2013. Amended Complaint due by 2/3/2014. (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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MIKEAL STINE,
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Plaintiff,
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CASE NO. 1:13-cv-01883-MJS
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
v.
(ECF NO. 5)
FEDERAL BUREAU OF PRISONS,
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AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS
Defendant.
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Mikeal Stine, a federal prisoner proceeding pro se, filed this civil action on
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November 12, 2013, pursuant to Bivens v. Six Unknown Named Agents of the Federal
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Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of
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civil rights by federal actors. (ECF No. 1.) Plaintiff has consented to Magistrate Judge
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jurisdiction. (ECF No. 4.)
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The Court issued an order severing Plaintiff's claims from the initial lawsuit filed
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on behalf of Plaintiff and other prisoners. (ECF No. 2.) On December 5, 2013, Plaintiff
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filed his First Amended Complaint. (ECF No. 5.) That amended complaint is now before
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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 which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may
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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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III.
SUMMARY OF FIRST AMENDED COMPLAINT
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The First Amended Complaint identifies the following individuals as Defendants:
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(1) John Doe #1, United States Penitentiary Atwater (Atwater); (2) John Doe #2, Atwater;
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and (3) an unspecified number of additional John Does.
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Plaintiff alleges the following:
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In 2010 Plaintiff, along with fellow inmates Pinson and Eyre, initiated a lawsuit.
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Eyre was subsequently transferred to Atwater. Sometime in late 2012 Defendants Doe
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#1 and Doe #2 pulled inmate Eyre into an office and began questioning him on the facts
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of his lawsuit. (Compl. at 6.) Defendants urged Eyre to remove himself from the case.
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They told Eyre Plaintiff was a snitch and that Eyre should not associate with him. (Id. at
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6 and 7.)
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Word spread that Plaintiff was a snitch.
Plaintiff has since been assaulted by
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prison gang members who have vowed to kill him at the first opportunity. According to
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several inmates, Atwater staff have advised incoming inmates not to talk to Plaintiff as
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doing so would put them at risk of being labeled snitches. (Id. at 7.)
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IV.
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ANALYSIS
A.
Bivens Pleading Standard
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A complaint must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct.
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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a claim that is
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plausible on its face.‟” Id. Facial plausibility demands more than the mere possibility
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that a defendant committed misconduct and, while factual allegations are accepted as
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true, legal conclusions are not. Id. at 1949-50.
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Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the
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replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum
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v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal
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officer in his or her individual capacity for damages for violating the plaintiff's
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constitutional rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must
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allege: (1) that a right secured by the Constitution of the United States was violated, and
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(2) that the alleged violation was committed by a federal actor.
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B.
Linkage Requirement
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All of the Defendants in this action are identified as John Does. Defendants Doe
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#1 and Doe #2 are sufficiently distinguished. The third Defendant is identified in the
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amended complaint as a group of unspecified John Does. There are no facts in the
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pleading describing participation by these Doe Defendants in any alleged violations.
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The Court cannot determine the viability of such claims without factual allegations
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describing their conduct.
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Plaintiff must establish legal liability of each person or entity for the claimed
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violation of his rights. Liability may be imposed on an individual defendant if the plaintiff
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can show that the defendant proximately caused the deprivation of a federally protected
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right.
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another of a constitutional right if he does an affirmative act, participates in another's
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See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives
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affirmative act or omits to perform an act which he is legally required to do, that causes
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the deprivation of which the plaintiff complains. See id. at 633; see also, e.g., Robins v.
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Meecham, 60 F.3d 1436, 1442 (9th Cir.1995) (prison official's failure to intervene to
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prevent 8th Amendment violation may be basis for liability).
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allegations will not suffice; the plaintiff must instead “set forth specific facts as to each
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individual defendant's” deprivation of protected rights. Leer, 844 F.2d at 634.
Sweeping conclusory
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A plaintiff may use “Doe” designations to refer to defendants whose names are
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unknown; however, he must number them in the complaint, e.g., “John Doe 1,” “John
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Doe 2,” so that each numbered John Doe refers to a different specific person. Plaintiff
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also must identify how each such named Defendant, including those named as Doe, is
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liable for a constitutional violation. Dempsey v. Schwarzenegger, 2010 WL 1445460, *2
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(N.D. Cal. Apr. 9, 2010); Schrubb v. Tilton, 2009 WL 3334874, *2 (N.D. Cal. Oct. 14,
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2009).
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Although the use of Doe defendants is acceptable to withstand dismissal of a
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complaint at the initial review stage, using “John Doe” defendants creates its own
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problem: those persons cannot be served with process in this action until they are
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identified by their real names. Plaintiff must promptly take steps to discover the name of
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the unnamed Defendants and provide that information to the Court in his amended
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complaint. The burden remains on the Plaintiff and the Court will not undertake to
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investigate the name and identity of the unnamed Defendants.
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C.
Eighth Amendment
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The Eighth Amendment protects prisoners from inhumane methods of
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punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465
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F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and
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harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation,
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medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct.
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1970 (1994) (internal citations and quotations omitted). Prison officials have a duty to
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take reasonable steps to protect inmates from physical abuse. Farmer, 511 U.S. at 833.
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To establish a violation of this duty, the prisoner must establish that prison
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officials were “deliberately indifferent” to serious threats to the inmate's safety. Id. at
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834. To demonstrate that a prison official was deliberately indifferent to a serious threat
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to the inmate's safety, the prisoner must show that “the official [knew] of and
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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
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exists, and [the official] must also draw the inference.” Id. at 837; Anderson v. County of
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Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). However, to prove knowledge of the risk, the
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prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk
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may be sufficient to establish knowledge. Farmer, 511 U.S. at 842.
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Plaintiff is currently confined in United States Penitentiary, Florence ADMAX
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(Florence). He complains that Defendants Doe #1 and Doe #2 told an inmate at Atwater
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that Plaintiff was a snitch. This information spread throughout the prisoner population
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and Plaintiff was subsequently threatened and attacked.
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targeted regardless of where he was incarcerated.
He was told he would be
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Allegations that prison officials called a prisoner a “snitch” in the presence of other
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inmates are sufficient to state a claim of deliberate indifference to an inmate's safety.
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See Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989) (labelling as
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“snitch” for petitioning prison and government officials for redress of grievances may
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state viable First and Eighth Amendment claims). Plaintiff‟s allegations, taken as true,
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are sufficient to state an Eighth Amendment claim against the Defendants. Id. However,
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as discussed above, Plaintiff‟s claim must still be dismissed. The Court cannot order
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service of the Complaint without a named Defendant. Plaintiff must discover the names
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of either Defendant Doe #1 or Doe #2 before this action can proceed.
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The Court will grant Plaintiff leave to amend. To state a claim, Plaintiff must
reallege the facts underlying his claim and identify at least one Defendant by name.
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D.
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Allegations of retaliation against a prisoner‟s First Amendment rights to speech or
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to petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658
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F.3d 1090, 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985);
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see also Valandingham, 866 F.2d at 1135; Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.
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1995). “Within the prison context, a viable claim of First Amendment retaliation entails
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five basic elements: (1) An assertion that a state actor took some adverse action against
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an inmate (2) because of (3) that prisoner‟s protected conduct, and that such action (4)
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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,
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567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir.
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2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
Retaliation
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The allegations that Defendants Doe #1 and Doe #2 tried to coerce Plaintiff‟s
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fellow inmate and co-plaintiff in response to the litigation they had filed, labeled Plaintiff
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a snitch, and then Plaintiff was assaulted apparently because identified as a snitch is
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sufficient to state a cognizable First Amendment retaliation claim. See Valandingham,
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866 F.2d at 1138–40 (labelling as “snitch” for petitioning prison and government officials
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for redress of grievances may state viable First and Eighth Amendment claims).
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However, as discussed above, Plaintiff cannot proceed against all Doe Defendants.
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The Court will provide Plaintiff leave to amend and reallege his cognizable Eighth
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and First Amendment claims against named Defendants. Plaintiff is reminded that the
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action cannot proceed without a cognizable claim alleged against a named Defendant.
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V.
CONCLUSION AND ORDER
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Plaintiff‟s Complaint does not state a claim for relief. The Court will grant Plaintiff
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an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49
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(9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts
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resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff
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must set forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟”
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Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate
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that each named Defendant personally participated in a deprivation of his rights. Jones
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v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th
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Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on
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curing the deficiencies set forth above.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. As a general
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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint
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no longer serves any function in the case. Therefore, in an amended complaint, as in an
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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 “Second
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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).
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Accordingly, it is HEREBY ORDERED that:
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1.
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The Clerk‟s Office shall send Plaintiff (1) a blank civil rights complaint form
and (2) a copy of his First Amended Complaint, filed December 5, 2013;
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Plaintiff‟s First Amended Complaint is dismissed for failure to state a claim
upon which relief may be granted;
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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,
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this action will 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 28, 2013
/s/
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UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:
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Michael J. Seng
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