Rosas v. Denny et al
Filing
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ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, For Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 12/5/2014. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FEDERICO ROSAS,
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Plaintiff,
v.
D. DENNY, et al.,
Defendants.
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Case No.: 1:14-cv-01418-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO STATE
A COGNIZABLE CLAIM FOR RELIEF
[ECF No. 1]
Plaintiff Federico Rosas is appearing pro se in this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff filed the instant complaint on September 11, 2014.
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I.
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SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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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 (2009) (citing Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,
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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now
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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive
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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow
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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,
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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer
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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely
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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556
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U.S. at 678; Moss, 572 F.3d at 969.
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II.
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COMPLAINT ALLEGATIONS
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Plaintiff names D. Denny, M. Seaman, and S. Tallerico as Defendants.
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Plaintiff contends that Defendants violated his constitutional rights by cancelling his inmate
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appeals without justification. Plaintiff contends Defendants seem to be retaliating against him for
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taking legal action by using the inmate grievance procedure to file a claim in the court regarding the
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loss of his personal property.
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III.
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DISCUSSION
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A.
Inmate Grievance Process
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“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of
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life, liberty, or property; and those who seek to invoke its procedural protection must establish that one
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of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not a
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have protected liberty interest in the processing his appeals, and therefore, he cannot pursue a claim
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for denial of due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza,
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334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).
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Plaintiff contends that Defendants have canceled and/or rejected his inmate appeals in
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retaliation for being a “litigator.” Defendants’ actions in responding and/or processing Plaintiff’s
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appeals, alone, cannot give rise to any claims for relief under section 1983 for violation of due process.
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Accordingly, Plaintiff fails to state a cognizable claim for relief based upon the inmate appeals
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process.
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B.
Access to the Court
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Plaintiff has a constitutional right of access to the courts and prison officials may not actively
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interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011).
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However, to state a viable claim for relief, Plaintiff must allege he suffered an actual injury, which is
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actual prejudice with respect to contemplated or existing litigation. Nevada Dep’t of Corr. v. Greene,
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648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518 U.S. 343, 348 (1996)) (quotation
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marks omitted). Actual injury is “actual prejudice with respect to contemplated or existing litigation.”
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Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518
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U.S. 343, 348 (1996)) (internal quotation marks omitted).
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Plaintiff fails to state a claim against any Defendants for denial of access to the courts.
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Plaintiff has not alleged sufficient facts which indicate that he suffered an actual injury with respect to
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contemplated or existing litigation. Any claim by Plaintiff that his present ability to file a civil rights
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complaint pursuant to 42 U.S.C. § 1983, was impeded no such claim can exist as Plaintiff has filed and
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this Court has reviewed the instant complaint. Accordingly, Plaintiff fails to state a cognizable claim
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for relief.
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C.
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“Prisoners have a First Amendment right to file grievances against prison officials and to be
Retaliation
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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing
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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the
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right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d
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1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation
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entails five basic elements: (1) An assertion that a state actor took some adverse action against an
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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a
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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
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Here, Plaintiff has neither alleged nor shown that he was ever threatened with retaliation as a
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result of filing—or to stop him from filing—a grievance. Plaintiff makes only the bare assertion that
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he was retaliated against for filing grievances. Accordingly, Plaintiff fails to state a cognizable claim
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for relief.
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D.
Loss of Personal Property
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The Due Process Clause protects prisoners from being deprived of property without due
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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners have a protected interest in
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their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However, while an
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authorized, intentional deprivation of property is actionable under the Due Process Clause, see Hudson
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v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-
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436 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither negligent nor unauthorized
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intentional deprivations of property by a governmental employee “constitute a violation of the
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procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful
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postdeprivation remedy for the loss is available,” Hudson, 468 U.S. at 533.
For an unauthorized deprivation of property, Plaintiff would have to allege that he lacks a
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meaningful state tort remedy for any unauthorized property deprivation (i.e., a deprivation not
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authorized by properly adopted regulations, procedures and policies). Plaintiff should note that for
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unauthorized deprivations of property, he does have an adequate post-deprivation remedy under
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California law and therefore, any attempt to pursue a claim under federal law for unauthorized taking
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of his property fails as a matter of law. Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994)
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(citing Cal. Gov’t Code §§ 810-895.)
Plaintiff does not allege whether his property deprivation was authorized or unauthorized.
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Thus, the facts, as alleged by Plaintiff, fail to give rise to a cognizable claim for relief.
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D.
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Plaintiff makes vague reference to the actions taken by Defendants causing cruel and unusual
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Cruel and Unusual Punishment
punishment upon him.
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 v. Brennan, 511 U.S. 825,
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847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981))
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(quotation marks omitted). While conditions of confinement may be, and often are, restrictive and
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harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045
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(citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions which are devoid of
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legitimate penological purpose or contrary to evolving standards of decency that mark the progress of
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a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and
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citations omitted); Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346.
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To maintain an Eighth Amendment claim, a prisoner must show that prison officials were deliberately
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indifferent to a substantial risk of harm to his health or safety. Farmer, 511 U.S. at 847; Thomas v.
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Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir.
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2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th
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Cir. 1998).
Plaintiff has alleged no facts that give rise to a claim for cruel and unusual punishment.
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Accordingly, Plaintiff fails to state a claim for relief under the Eighth Amendment.
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IV.
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CONCLUSION AND ORDER
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For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be
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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.
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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by
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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.
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2007) (no “buckshot” complaints).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each
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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.
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Iqbal, 556 U.S. 662, 678. “The inquiry into causation must be individualized and focus on the duties
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and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a
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constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Although accepted as
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true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level .
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. .” Twombly, 550 U.S. at 555 (citations omitted).
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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,
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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be
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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All
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causes of action alleged in an original complaint which are not alleged in an amended complaint are
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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.
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1981)); accord Forsyth, 114 F.3d at 1474.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
The Clerk’s Office shall send Plaintiff an amended civil rights complaint form;
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2.
Plaintiff’s complaint, filed September 11, 2014, is dismissed for failure to state a claim;
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3.
Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and
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4.
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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will be dismissed, with prejudice, for failure to state a claim.
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IT IS SO ORDERED.
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Dated:
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December 5, 2014
UNITED STATES MAGISTRATE JUDGE
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