Hubbard v. Ochoa, et al.

Filing 10

ORDER DISMISSING 9 FIRST AMENDED COMPLAINT for Failure to State a Claim, WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 4/23/2015. Second Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZANE HUBBARD, 12 Plaintiff, 13 14 vs. 1:14-cv-00041-AWI-GSA-PC ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Doc. 9.) DE OCHOA, et al., 15 Defendants. THIRTY DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT 16 17 I. BACKGROUND 18 Zane Hubbard (―Plaintiff‖) is a state prisoner proceeding pro se with this civil rights 19 action pursuant to 42 U.S.C. § 1983 and the Foreign Intelligence Surveillance Act of 1978, 50 20 U.S.C. §§ 1801-1811 (1982). Plaintiff filed the Complaint commencing this action on January 21 13, 2014. (Doc. 1.) The court screened the Complaint and issued an order on June 20, 2014, 22 dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On July 7, 23 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. 24 (Doc. 9.) 25 II. SCREENING REQUIREMENT 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 28 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 1 1 legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or 2 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 3 ' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been 4 paid, the court shall dismiss the case at any time if the court determines that the action or 5 appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). 6 A complaint is required to contain Aa short and plain statement of the claim showing 7 that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 8 not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 10 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 11 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge 12 unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 13 (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual 14 matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal, 556 U.S. 15 at 678. While factual allegations are accepted as true, legal conclusions are not. Id. 16 To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to 17 state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 18 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility 19 standard. Id. 20 III. SUMMARY OF FIRST AMENDED COMPLAINT 21 Plaintiff is presently incarcerated at Corcoran State Prison (CSP) in Corcoran, 22 California, in the custody of the California Department of Corrections and Rehabilitation 23 (CDCR), where the events at issue in the First Amended Complaint allegedly occurred. 24 Plaintiff names as defendants Sergeant De Ochoa and Correctional Officer (C/O) Rodriguez 25 (―Defendants‖). Defendants were employed by the CDCR at CSP at the time of the events at 26 issue. Plaintiff‘s factual allegations follow. 27 On November 23, 2013, with approximately twenty-eight homosexual male inmates and 28 ten male Correctional Officers present, defendant C/O Rodriguez told Plaintiff to strip and bend 2 1 at the waist. Plaintiff refused and asked why he was singled out for a cavity search. Defendant 2 Sergeant De Ochoa stated, ―I think you have something in your a**.‖ (Amd Cmp, Doc. 9 at 3 3 ¶IV.) Other officers told Plaintiff, ―in a homosexual manner,‖ that he needed to submit to a 4 cavity search. (Amd Cmp at 3 ¶IV(4).) This was sexual harassment and excessive force, done 5 deliberately to embarrass Plaintiff. Officers confiscated Plaintiff‘s clothing and left him naked 6 in front of male and female officers and nurses. Plaintiff responded with expletives. Half an 7 hour later, Officer Hobbs [not a defendant] and other officers strip-searched Plaintiff again, 8 forcing him to squat and cough three times. 9 Plaintiff alleges that he is illegally surveilled on a twenty-four hour basis under the 10 Foreign Intelligence Surveillance Act of 1978, so officers were aware that Plaintiff was not 11 concealing any items. Through these means, authorities know that Plaintiff is homophobic 12 (against homosexuality), and Plaintiff believes Defendants acted out of discrimination due to 13 Plaintiff‘s race, gender and gender identity, religion, and sexual orientation. Plaintiff believes 14 that correctional officers seek to influence him to become homosexual. Plaintiff is sexually 15 harassed and threatened daily by prison authorities, in violation of the Eighth Amendment and 16 California regulations. Plaintiff has been subjected to unclothed searches around many other 17 male inmates who humiliate him by taunting him about his genitalia and bragging about their 18 sexual acts. Other than sexual harassment, defendant De Ochoa had no reasonable suspicion to 19 search Plaintiff in front of others. 20 The recreation yard is not a high risk security area, but inmates are searched before 21 entering the yard, in their cells, and then segregated by dog cages. These strip searches are 22 very disrespectful and threatening to integrity. Officers force their sexual preference on men 23 who are resisting. This is abuse of authority. The surveillance, threats, and taunting are 24 dehumanizing. 25 Plaintiff requests monetary and injunctive relief. 26 /// 27 /// 28 /// 3 1 2 IV. PLAINTIFF=S CLAIMS The Civil Rights Act under which this action was filed provides: 3 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 4 5 6 7 42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal 8 Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 9 (internal quotations omitted). ATo the extent that the violation of a state law amounts to the 10 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 11 Constitution, Section 1983 offers no redress.@ Id. Insufficient Factual Allegations – Defendants Rodriguez and DeOchoa 12 A. 13 The court finds Plaintiff‘s allegations against defendants Rodriguez and De Ochoa to be 14 insufficient to state any claims against them. AWhile a plaintiff=s allegations are taken as true, 15 courts Aare not required to indulge unwarranted inferences.@ Doe I, 572 F.3d at 681. To state a 16 viable claim for relief, Plaintiff must set forth sufficient factual allegations sufficient to state a 17 plausible claim for relief. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. The mere possibility 18 of misconduct falls short of meeting this plausibility standard. Id. 19 Plaintiff must demonstrate that each defendant personally participated in the deprivation of his 20 rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). Plaintiff must 21 demonstrate that each defendant, through his or her own individual actions, violated Plaintiff=s 22 constitutional rights. Iqbal, 556 U.S. at 676. Under section 1983, 23 In the First Amended Complaint, Plaintiff alleges very few facts specifically against 24 defendants Rodriguez and De Ochoa. Plaintiff alleges only that ―Officer Rodriguez during 25 searches specifically requested that I strip and bend at the waist;‖ that Plaintiff ―asked Sergeant 26 De Ochoa ‗why‘ I was singled out, out of 27 other inmates for a cavity search, and Sergeant De 27 Ochoa stated: ‗I think you have something in your a**;‘‖ and that ―[o]ther than for sexual 28 harassment and abuse of power, Sergeant De Ochoa had no reasonable suspicion to spot-check, 4 1 cavity search, or bare search Plaintiff in front of the whole institution.‖ (ACP, Doc. 9 at 3 2 ¶IV(1),(2), 5 ¶(16).) Plaintiff does not allege that either of the Defendants personally harassed 3 him or subjected him to a strip search; in fact, Plaintiff alleges that other officers confiscated 4 his clothing, left him exposed bare in front of officers and nurses, made sexual remarks to him, 5 and conducted a strip search half an hour later. (ACP at 3 ¶IV(3)-(5), 4-5 ¶(13).) Therefore, 6 Plaintiff‘s allegations against defendants Rodriguez and De Ochoa are not sufficient to state 7 any claims against them under § 1983 upon which relief may be granted. 8 B. 9 The focus of Plaintiff‘s First Amended Complaint is his contention that his rights were 10 violated by prison officials during strip searches. Plaintiff generally alleges that ―officers‖ 11 acted against him by subjecting him to sexual harassment, threats, twenty-four hour 12 surveillance, excessive force, humiliation, and discrimination. However, Plaintiff fails to make 13 specific factual allegations against individual defendants except as noted above, and his general 14 allegations do not rise to the level of any constitutional violation, as discussed in the following 15 paragraphs. 16 Strip Searches 1. Eighth Amendment 17 The Eighth Amendment protects prisoners from inhumane methods of punishment and 18 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 19 Cir. 2006). In some instances, infliction of emotional pain may constitute cruel and unusual 20 punishment prohibited by the Eighth Amendment. See Jordan v. Gardner, 986 F.2d 1521, 1524 21 (9th Cir. 1993) (en banc) (holding that contact searches of female prisoners by male guards 22 violated Eighth Amendment). Prison officials are not liable for inflicting pain on a prisoner 23 through body search techniques unless the official acted with deliberate indifference to a 24 serious risk of harm to the prisoners, id. at 1528, or subjected the prisoner to ―unnecessary and 25 wanton infliction of pain,‖ see Koch v. Ricketts, 82 F.3d 317, 318 (9th Cir. 1996) 26 (acknowledging that prison guards' conducting a body cavity search could in certain 27 circumstances violate an inmate's Eighth Amendment rights). 28 /// 5 1 The Eighth Amendment protects inmates from repetitive and harassing searches, and 2 from sexual abuse. Hudson v. Palmer, 468 U.S. 517, 530 (1984); Schwenk v. Hartford, 204 3 F.3d 1187, 1197 (9th Cir. 2000). Sexual assault, coercion, and harassment certainly may 4 violate contemporary standards of decency and cause physical and psychological harm. See 5 Jordan, 986 F.2d at 1525–31. However, not every malevolent touch by a prison guard or 6 official gives rise to an Eighth Amendment violation—the Eighth Amendment's prohibition 7 against cruel and unusual punishment necessarily excludes from constitutional recognition de 8 minimis uses of force. See Hudson v. McMillian, 503 U.S. 1, 9–10, 112 S.Ct. 995 (1992); 9 Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (no Eighth Amendment violation 10 where employees briefly touched inmate's buttocks with apparent intent to embarrass him). To 11 state a claim for sexual harassment under the Eighth Amendment, a prisoner must establish that 12 the alleged sexual harassment was egregious, pervasive, and/or widespread. See, e.g., Jordan, 13 986 F.2d at 1525–31 (prison policy requiring male guards to conduct body searches on female 14 prisoners); Watson v. Jones, 980 F.2d 1165, 1165–66 (8th Cir. 1992) (correctional officer 15 sexually harassed two inmates on almost daily basis for two months by conducting deliberate 16 examination of genitalia and anus). 17 Plaintiff has not alleged that he was touched or physically injured during strip searches, 18 or that he was subjected to egregious, pervasive, or widespread sexual harassment. While he 19 claims that he was spoken to ―in a homosexual manner,‖ which he believes was done out of 20 sexual harassment, and was taunted about the size of his genitals, such conclusory allegations 21 do not amount to a constitutional violation. (Amd Cmp at 3 ¶IV(4).) Plaintiff alleges that he 22 felt degraded and humiliated. However, he fails to allege sufficient facts showing that prison 23 officials had knowledge of a serious risk of harm to Plaintiff. Thus, Plaintiff fails to state a 24 cognizable Eighth Amendment claim. 25 2. Fourth Amendment 26 The Fourth Amendment guarantees the right of the people to be secure against 27 unreasonable searches, and its protections extend to incarcerated prisoners. Bell v. Wolfish, 28 441 U.S. 520, 545 (1979). In determining the reasonableness of a search under the Fourth 6 1 Amendment, A[c]ourts must consider the scope of the particular intrusion, the manner in which 2 it is conducted, the justification for initiating it, and the place in which it is conducted.@ Id. at 3 559. The reasonableness of a prisoner search is determined by reference to the prison context. 4 Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). AWhen a prison regulation 5 impinges on inmates= constitutional rights, the regulation is valid if it is reasonably related to 6 legitimate penological interests.@ Turner v. Safley, 482 U.S. 78, 79 (1987). The Supreme Court 7 found reasonable ―‗[v]isual body cavity searches conducted after contact visits as a means of 8 preventing prisoners' possession of weapons and contraband, even absent probable cause.‘‖ Id., 9 111 F.3d at 700 (quoting Michenfelder, 860 F.2d at 332). In Thompson, the Ninth Circuit held 10 that visual strip searches and urine tests to search for drugs were reasonably related to the 11 prison officials' legitimate penological interest in keeping drugs out of prison. Id. However, 12 ―not all strip search procedures will be reasonable; some could be excessive, vindictive, 13 harassing, or unrelated to any legitimate penological interest.‖ Id. The prisoner bears the 14 burden of showing that prison officials intentionally used exaggerated or excessive means to 15 enforce security in conducting a search. See Thompson v. Souza, 111 F.3d 694, 700 (9th 16 Cir.1997). 17 The Fourth Amendment applies to the invasion of bodily privacy in prisons and jails. 18 Bull v. San Francisco, 595 F.3d 964, 974–75 (9th Cir. 2010) (en banc). Prisoners= legitimate 19 expectations of bodily privacy from persons of the opposite sex are extremely limited. Jordan, 20 986 F.2d at 1524; see also Michenfelder, 860 F.2d at 328 (visual body-cavity searches of male 21 inmates conducted within view of female guards held constitutional); Grummett v. Rushen, 779 22 F.2d 491, 492 (9th Cir. 1985) (high potential for female guards to view male inmates disrobing, 23 showering, and using toilet facilities did not render prison policies unconstitutional); Rickman 24 v. Avaniti, 854 F.2d 327, 327-28 (9th Cir. 1988) (routine visual body-cavity searches of 25 prisoners held constitutional); Thompson, 111 F.3d at 700-01 (visual body-cavity search of 26 prisoners conducted in public held constitutional). 27 searches may violate the Fourth Amendment's reasonableness standard. Somers v. Thurman, 28 109 F.3d 614, 622 n.5 (9th Cir. 1997). 7 However, abusive cross-gender strip 1 Plaintiff alleges that defendant Rodriguez ordered him to strip and bend at the waist, 2 and defendant De Ochoa told him he was singled out for a cavity search because it was 3 suspected he was concealing something. When Plaintiff refused to follow orders, he was 4 stripped of his clothing and left naked and exposed in front of male and female officers and 5 nurses. Half an hour later, Officer Hobbs [not a defendant] conducted a strip search on 6 Plaintiff. There is no evidence in Plaintiff‘s allegations that the strip search conducted here 7 violated Plaintiff's Fourth Amendment rights. 8 Amendment claim for being subjected to a strip search. 9 3. Therefore, Plaintiff fails to state a Fourth Due Process 10 The Due Process Clause protects prisoners from being deprived of liberty without due 11 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of 12 action for deprivation of procedural due process, a plaintiff must first establish the existence of 13 a liberty interest for which the protection is sought. The Fourteenth Amendment embodies a 14 right to privacy. E.g., York v. Story, 324 F.2d 450, 454 (9th Cir. 1963); Grummett, 779 F.2d at 15 493-94 (It is clearly established that the Fourteenth Amendment protects a sphere of privacy, 16 and the most Abasic subject of privacy ... the naked body@). 17 institutional life demand that privacy be limited, it is clearly established that gratuitous 18 invasions of privacy violate the Fourteenth Amendment. See id. However, prisoners= privacy 19 rights are subject to infringement by prison policies that are reasonably related to legitimate 20 penological interests. Thompson, 111 F.3d at 701-702 (reasonableness test set forth in Turner 21 applies whenever the needs of prison administration implicate constitutional rights). To restrict 22 female guards from positions which involve occasional viewing of inmates unclothed would 23 possibly produce a risk to both internal security needs and equal employment opportunities, and 24 thus such surveillance is justified. Grummett, 779 F.2d at 496. 25 While the circumstances of Plaintiff alleges that he was stripped naked in preparation for a strip search, within view 26 of male and female officers and nurses. 27 humiliated. 28 observation by others while he was unclothed, or that the officers and nurses did more than Plaintiff alleges that he was embarrassed and However, Plaintiff makes no allegations that he was subject to prolonged 8 1 casually observe him in passing. Thus, Plaintiff‘s allegations have not established that this 2 observation by others, including members of the opposite sex, was so degrading that it violated 3 the Fourteenth Amendment. 4 C. 5 The Equal Protection Clause requires that persons who are similarly situated be treated 6 alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 7 (1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may 8 be established by showing that Defendants intentionally discriminated against Plaintiff based 9 on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of 10 Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th 11 Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly 12 situated individuals were intentionally treated differently without a rational relationship to a 13 legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128 14 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 15 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC 16 v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). Equal Protection 17 Plaintiff has not alleged any facts demonstrating that he was intentionally discriminated 18 against on the basis of his membership in a protected class, or that he was intentionally treated 19 differently than other similarly situated inmates without a rational relationship to a legitimate 20 state purpose. Therefore, Plaintiff fails to state a claim for relief for violation of his right to 21 equal protection. 22 D. 23 Plaintiff alleges that he was sexually harassed and threatened daily by prison 24 authorities. Verbal harassment or abuse alone is not sufficient to state a claim under section 25 1983, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and threats do not rise to the 26 level of a constitutional violation, Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Therefore, 27 Plaintiff fails to state a claim based on verbal harassment and threats by Defendants. 28 /// Verbal Threats 9 1 E. 2 Plaintiff alleges that prison officials illegally subjected him to twenty-four hour 3 4 Twenty-Four Hour Surveillance surveillance under the Foreign Intelligence Surveillance Act of 1978. 1. Foreign Intelligence Surveillance Act (“FISA”) 5 ―Enacted in 1978, FISA [50 U.S.C. §§ 1801-1811 (1982)] generally allows a federal 6 officer, if authorized by the President of the United States acting through the Attorney General 7 (or the Acting Attorney General or the Deputy Attorney General) of the United States, to obtain 8 from a judge of the specially created FISA Court, see 50 U.S.C. Section 1803, an order 9 ‗approving electronic surveillance of a foreign power or an agent of a foreign power for the 10 purpose of obtaining foreign intelligence information.‘ 11 Kevork, 634 F. Supp. 1002, 1006 (C.D. Cal. 1985) aff'd, 788 F.2d 566 (9th Cir. 1986) (citing 12 United States v. Duggan, 743 F.2d 59, 69-70 (2d Cir. 1984). Id. Section 1802(b)‖; Matter of 13 Plaintiff claims that he was illegally under twenty-four hour surveillance under FISA. 14 This conclusory allegation, without more, cannot state a claim upon which relief may be 15 granted. A complaint does not suffice if it tenders ―naked assertion[s]‖ devoid of ―further 16 factual enhancement.‖ Iqbal, 556 U.S. at 678. To state a viable claim for relief, Plaintiff must 17 set forth sufficient factual allegations sufficient to state a plausible claim for relief. Id.; Moss, 18 572 F.3d at 969. 19 surveillance, how the surveillance was being conducted, or that the surveillance was illegal 20 under FISA. Therefore, Plaintiff fails to state a claim under FISA. 21 2. Plaintiff alleges no facts showing that he was under twenty-four hour Fourth Amendment 22 To the extent that Plaintiff seeks to bring a claim for eavesdropping under the Fourth 23 Amendment, the reasonableness of a prisoner search is determined by reference to the prison 24 context. Michenfelder, 860 F.2d at 332. A>Lawful incarceration brings about the necessary 25 withdrawal or limitation of many privileges and rights, a retraction justified by the 26 considerations underlying our penal system.=@ Id. (quoting Price v. Johnson, 334 U.S. 266, 285 27 (1948)). AWhen a prison regulation impinges on inmates= constitutional rights, the regulation is 28 valid if it is reasonably related to legitimate penological interests.@ Turner, 482 U.S. at 79. As 10 1 discussed above, the prisoner bears the burden of showing that the search was unreasonable. 2 See Thompson, 111 F.3d at 700. Plaintiff has not alleged facts describing the scope of the 3 surveillance, the manner in which it was conducted, the justification for initiating it, or the 4 place which in it was conducted. Id. Without more specific facts, Plaintiff is unable to state a 5 cognizable Fourth Amendment claim for eavesdropping. 6 F. 7 Plaintiff brings claims against defendants for negligence, state civil rights, defamation, 8 failure to train and supervise employees, and violation of state regulations and the state 9 constitution. Plaintiff is informed that violation of state law is not sufficient to state a claim for 10 relief under ' 1983. To state a claim under ' 1983, there must be a deprivation of federal 11 constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976). Although the court 12 may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a 13 cognizable claim for relief under federal law. See 28 U.S.C. ' 1367. In this instance, the court 14 fails to find any cognizable federal claims in the First Amended Complaint. 15 Plaintiff=s state law claims fail. 16 V. State Law Claims Therefore, CONCLUSION AND ORDER 17 The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable 18 claim upon which relief may be granted under ' 1983 or the Foreign Intelligence Surveillance 19 Act. Under Rule 15(a) of the Federal Rules of Civil Procedure, ―leave to amend shall be freely 20 given when justice so requires.‖ The Court finds that justice requires providing Plaintiff with 21 the court‘s guidance in this order and another opportunity to file an amended complaint that 22 states a claim. 23 complaint curing the deficiencies identified above. Lopez v. Smith, 203 F.3d 1122, 1126-30 24 (9th Cir. 2000). 25 days. Therefore, the Court will provide Plaintiff with time to file an amended Plaintiff is granted leave to file a Second Amended Complaint within thirty 26 The amended complaint should be brief, but must state what each named defendant did 27 that led to the deprivation of Plaintiff‘s constitutional or other federal rights. Fed. R. Civ. P. 28 8(a); Iqbal, 129 S.Ct. at 1948-49; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There 11 1 is no respondeat superior liability, and each defendant is only liable for his or her own 2 misconduct. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth ―sufficient factual matter . . . 3 to ‗state a claim that is plausible on its face.‘‖ Id. at 1949 (quoting Twombly, 550 U.S. at 555). 4 Plaintiff must also demonstrate that each defendant personally participated in the deprivation of 5 his rights. Jones, 297 F.3d at 934 (emphasis added). As Plaintiff was advised in the court‘s 6 prior order, in order to hold an individual defendant liable, Plaintiff must name the individual 7 defendant, describe where that defendant is employed and in what capacity, and explain how 8 that defendant acted under color of state law. Plaintiff should state clearly, in his own words, 9 what happened, describing what he saw, heard, or otherwise experienced. Plaintiff must 10 describe what each defendant did to violate the particular right described by Plaintiff. Plaintiff 11 should carefully review the court‘s order and only include the claims he believes are 12 cognizable. 13 Plaintiff should note that although he has been given the opportunity to amend, it is not 14 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 15 507 F.3d 605, 607 (7th Cir. 2007) (no ―buckshot‖ complaints). 16 Plaintiff is reminded that an amended complaint supercedes the original complaint, 17 Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be 18 complete in itself without reference to the prior or superceded pleading, Local Rule 220. 19 Therefore, in an amended complaint, as in an original complaint, each claim and the 20 involvement of each defendant must be sufficiently alleged. The amended complaint should be 21 clearly and boldly titled ―Second Amended Complaint,‖ refer to the appropriate case number, 22 and be an original signed under penalty of perjury. 23 Based on the foregoing, it is HEREBY ORDERED that: 24 1. 25 Plaintiff‘s First Amended Complaint, filed on July 7, 2014, is dismissed for failure to state a claim, with leave to amend; 26 2. 27 /// 28 The Clerk‘s Office shall send Plaintiff a civil rights complaint form; /// 12 1 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file 2 a Second Amended Complaint curing the deficiencies identified by the Court in 3 this order; 4 4. 5 6 Plaintiff shall caption the amended complaint ―Second Amended Complaint‖ and refer to the case number 1:14-cv-00041-AWI-GSA-PC; and 5. 7 If Plaintiff fails to comply with this order, this action will be dismissed for failure to state a claim upon which relief may be granted. 8 9 10 11 IT IS SO ORDERED. Dated: April 23, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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?