Sanchez v. Lerdo Kern County Detention Facility

Filing 7

ORDER DISMISSING COMPLAINT for Failure to State a Claim; LEAVE TO AMEND Within Thirty Days Granted, signed by Magistrate Judge Michael J. Seng on 3/20/15. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM; LEAVE
TO AMEND WITHIN THIRTY DAYS
GRANTED

v.

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Case No. 1:14-cv-01424-MJS (PC)

ANTHONY JOSEPH SANCHEZ,

LERDO KERN COUNTY DETENTION
FACILITY,

(ECF No. 1)

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Defendant.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed on

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18 September 8, 2014 pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate
19 Judge Jurisdiction (ECF No. 4.) Plaintiff’s Complaint (ECF No. 1) is before the Court for
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screening.
II.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

25 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
26 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon
27 which relief may be granted, or that seek monetary relief from a defendant who is
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1 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
2 or any portion thereof, that may have been paid, the court shall dismiss the case at any
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time if the court determines that . . . the action or appeal . . . fails to state a claim upon
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

PLEADING STANDARD
Section 1983 “provides a cause of action for the deprivation of any rights,

8 privileges, or immunities secured by the Constitution and laws of the United States.”
9 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990), quoting 42 U.S.C. § 1983.
10 Section 1983 is not itself a source of substantive rights, but merely provides a method
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for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386,
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393-94 (1989).
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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)
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15 that a right secured by the Constitution or laws of the United States was violated, and
16 (2) that the alleged violation was committed by a person acting under the color of state
17 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d
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1243, 1245 (9th Cir. 1987).
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

22 are not required, but “[t]hreadbare recitals of the elements of a cause of action,
23 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
24 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
25 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 that

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a defendant committed misconduct and, while factual allegations are accepted as true,
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1 legal conclusions are not. Id. at 667-68.
2 IV.
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SUMMARY OF THE COMPLAINT
Plaintiff states that he is bringing his suit on behalf of himself and 20 other

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inmates at the Kern County Jail who have attached their signatures to the Complaint
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(ECF No. 1, at 13). Plaintiff is not specific about whom he is suing. He alleges that he

7 “is complaining of Policies, Practices and Procedures of the Kern County Sherriff’s
8 Office and it’s [sic] Employees.”
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Plaintiff describes a number of allegedly unconstitutional policies at the Kern

10 County Jail System:
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1) Group Punishment: Jail officials have a practice of imposing group
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punishment on inmates. Rather than initiate disciplinary hearings against
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individual inmates, officials confiscate personal property from all inmates in a
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housing assignment. Group punishment has the effect of inciting inmate

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violence, because inmates try to impose discipline on one another to forestall

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imposition of a blanket punishment.

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2) Copy Services: Jail officials require inmates to pay for copies unless they
have been deemed “pro per or pro se” litigants in existing court cases. This

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has the effect of preventing indigent inmates from initiating lawsuits,

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submitting required documentation to family court or government agencies, or

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sending copies of documents to their attorneys.

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3) Library Services: Jail officials have discontinued access to the library at
“Max/med, Pretrial, Minimum, and Central Receiving Facilities.” Inmates may
only read books that are their own personal property.

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4) Lockdown/Outdoor Recreation: Jail officials have instituted a lockdown in
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response to “racial riots.” As part of the lockdown, inmates cannot use the

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rec yard. Thus, inmates must exercise inside, which disrupts other indoor

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activities during the day. Independently of the lockdown, Plaintiff complains

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that the condition of the rec yard does not meet the requirements of prison
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regulations because it is “for the most part, dirt… infested with Valley Fever

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spores,” contains no exercise equipment or facilities, and therefore “cannot be

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regarded as designed for recreational purposes.” (ECF No. 1, at 5).

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The lockdown prevents inmates from being able to contact staff about

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medical emergencies in a timely manner. In at least one case, this resulted in
the death of an inmate, who broke his neck in a fall from his bunk and died

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before medical staff arrived. In addition, the lockdown causes delays when
inmates return to their cells from other parts of the prison. This results in

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inmates with medical problems/sensitivities being left in the heat and sun

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outside for up to 45 minutes at a time.

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5) Dental Care: Inmates have limited access dental care. They can only get
temporary fillings and extractions, but not other procedures.
6) Visitation: Plaintiff alleges a number of problems with visitation policies.

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First, not all inmates are able to have one visit per week. Second the visits do

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not last one hour because officials deduct the time it takes to transport the

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inmate to access the visitation yard. Third, contact visits have been

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discontinued due to concerns about contraband. Plaintiff contends there are

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ways to prevent the influx of contraband, for instance, by making use of an X-

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Ray scanner that the jail already owns, that do not require the complete

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prohibition of contact visits.
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7) Commissary Purchases: Plaintiff alleges there are several problems with

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the commissary system. First, he claims that prices are inflated that inmates

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do not have the option of purchasing their goods elsewhere. Next he claims

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that orders are subject to an illegal $3.00 surcharge. Initially, this was called
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a UPS fee on commissary invoices. After Plaintiff complained that “UPS never

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handled the packages,” the name of the fee changed to “processing fee.”

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Plaintiff contends that whatever the fee is called, it is illegal, and requests

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restitution for himself and everyone else subject to the charge.

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8) Meals: Plaintiff complains that the meals at the jail do not contain sufficient

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variety, sometimes include rotted food, and that portions are too small,

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amounting to cruel and unusual punishment under the Eighth Amendment.

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V.

DISCUSSION
Plaintiff attempts to raise a number of state and constitutional claims on behalf of

16 himself and other inmates. Because a pro se litigant may not represent other
17 individuals, Plaintiff’s claims are barred as to the other inmates. Because Plaintiff has
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not linked his claims to particular defendants or established that he himself suffered any
harm, Plaintiff fails to state a cognizable claim on his own behalf. The Court will

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therefore dismiss Plaintiff’s claims without prejudice, and provides relevant legal

22 standards for guidance if he chooses to amend.
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A. Plaintiff May Not Represent Other Inmates.

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Plaintiff, proceeding pro se in this action, may not represent the interests of any

25 other inmate(s). Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008);
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Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); Russell v. United
States, 308 F.2d 78, 79 (9th Cir. 1962) (“a litigant appearing in propria persona has no

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1 authority to represent anyone other than himself”).
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The Complaint has been signed by twenty inmates in addition to Plaintiff. The
Court will not permit these additional inmates to join as co-plaintiffs proceeding pro se.

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Courts have broad discretion regarding the permissive joinder of parties. Fed. R. Civ. P.
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20, 21; see Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296-97 (9th Cir. 2000);

7 Maddox v. County of Sacramento, No. 2:06-cv-0072-GEB-EFB, 2006 WL 3201078, *2
8 (E.D. Cal. Nov. 6, 2006). The need for co-plaintiffs to agree upon and sign all filings
9 becomes impossibly burdensome where, as here, the proposed co-plaintiffs are
10 incarcerated.1
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Plaintiff may proceed solely on his own behalf. The other inmates are dismissed
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as co-plaintiffs.
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B. Section 1983 Linkage Requirement
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Under § 1983, plaintiff must demonstrate that each defendant personally

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16 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th
17 Cir. 2002). Government officials may not be held liable for the actions of their
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subordinates under a theory of respondeat superior. Igbal, 129 S .Ct. at 1948. Plaintiff
must plead sufficient facts showing that the official has violated the Constitution through

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his or her own individual actions or omissions. Id.
Plaintiff has not named any individual defendant or explained how he or she

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23 participated in, or otherwise might be responsible for, the alleged violations. A
24 defendant acting in a supervisory capacity is liable only if he or she “participated in or
25 directed the violations, or knew of the violations and failed to act to prevent them.”
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Inmates may not correspond with other inmates in the absence of written authorization from the warden.
Cal. Code Regs., tit. 15, § 3139.

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1 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
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If Plaintiff chooses to amend, he must name one or more defendants amendable
to suit and demonstrate that each personally acted or failed to act violating his rights.

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C. Municipal Liability Under § 1983
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A municipality, including a county or sherriff’s department, may be liable under §

7 1983 if a plaintiff can show that “action pursuant to official municipal policy” caused his
8 injury. Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011); Monell v. Dept. of Soc.
9 Svcs., 436 U.S. 658, 691 (1978). To do this, a plaintiff must establish (1) he was
10 deprived of his constitutional rights by the municipal entity and its employees acting
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under color of state law; (2) that the defendants have customs or policies which
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demonstrate a conscious or deliberate disregard for constitutional rights; and (3) that
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these policies were the driving force behind the deprivation of the plaintiff’s rights. Gant
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15 v. Cty. of Los Angeles, 772 F.3d 608, 617 (9th Cir. 2014); Lee v. City of Los Angeles,
16 250 F.3d 668, 681-682 (9th Cir. 2001); see also Monell, 436 U.S. 658, 691 (1978).
17 Customs and policies include not only written rules and codes of conduct, but also
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“widespread and longstanding practice that constitutes the standard operating
procedure of the local government entity.” Young v. City of Visalia, 687 F.Supp.2d 1141,

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1147-1148 (E.D. Cal. 2009)(quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996);

22 Gillette v. Delmore, 979 F.2d 1342, 1346-1347 (9th Cir. 1992); see also Connick v., 131
23 S.Ct. at 1359. “A policy can be one of action or inaction.” Fairley v. Luman, 281 F.3d
24 913, 918 (9th Cir. 2002)(citations omitted).
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Where a plaintiff seeks to hold a municipal entity liable for his harm, he must
show “a direct causal link between [the] municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 386 (1989). “Local

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1 governments are only responsible for their own illegal acts,” and “are not vicariously
2 liable under § 1983 for their employees’ actions.” Connick, 131 S.Ct. at 1359 (emphasis
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in original)(citations omitted). Thus, a municipality can be liable for its policies even

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where individual defendants were found not to have inflicted constitutional harm.
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Fairley, 281 F.3d at 918.
Here, Plaintiff’s claims regarding group punishment, copy restrictions, library use,

8 the ancillary effects of the lockdown, limited dental care, and substandard food appear
9 to allege that the policies of the county or the sherriff’s department are causing
10 constitutional injury. Such claims against a local government entity are, as discussed
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above, permissible under Monell. However, as with any § 1983 claim, Plaintiff must
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show that his own constitutional rights were violated. See, e.g., Gant, 772 F.3d at 617.
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He has not made any such personal injury clear in his Complaint. If Plaintiff chooses to
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15 amend these claims, he must plead facts indicating he himself suffered constitutional
16 harm, and that particular policies and practices of the jail were directly responsible. The
17 court provides the particular constitutional standards applicable to each potential
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constitutional claim below.
1. Group Punishment/ Confiscation of Property

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Prisoners may not generally challenge the constitutionality of cell searches on

22 Fourth Amendment grounds. While the Fourth Amendment protects prisoners from
23 some unreasonable searches and seizures, Lopez v. Youngblood, 609 F.Supp.2d 1125,
24 1133 (E.D. Cal. 2009)(finding group strip searches were unreasonable), it “has no
25 applicability to a prison cell.” Hudson v. Palmer, 468 U.S. 517, 536 (1984). “An inmate
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has no reasonable expectation of privacy in his cell entitling him to the protection of the
Fourth Amendment against unreasonable searches and seizures.” Id. Moreover, any

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1 restriction of an inmate’s privacy interests is justified to the extent it is reasonably
2 related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
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A prisoner does have a protected property interest in his personal belongings

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such that he may be able to challenge their confiscation on due process grounds.
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Hudson, 468 U.S. at 532; Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, only

7 authorized, intentional deprivations of property implicate constitutional concerns.
8 Hudson, 468 U.S. at 532. Thus, to the extent an inmate challenges a confiscation
9 carried out pursuant to “established state procedure, rather than random and
10 unauthorized action,” he or she is entitled to predeprivation process. Hudson, 468 U.S.
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at 532 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-436 (1982)).
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However, an “unauthorized, intentional deprivation of property by a
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governmental employee” does not violate procedural due process “if a meaningful post14
15 deprivation remedy for the loss is available.” Hudson, 468 U.S. at 533; Barnett v.
16 Centoni, 31 F.3d

813, 816-817 (9th Cir. 1994).

The Ninth Circuit has found that

17 California’s post-deprivation remedy is adequate. Blueford v. Prunty, 108 F.3d 251, 256
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(9th Cir. 1997); Barnett, 31 F.3d at 816-817. Where a plaintiff seeks damages for the
alleged negligent or wrongful conduct of a state employee, he may file suit in state court

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under the California Tort Claims Act. CAL. GOV’T. CODE §§ 810 et seq.; Barnett, 31 F.3d

22 at 816-817. The Act requires plaintiffs suing “for money or damages” to first present
23 their claims to the Victim Compensation and Government Claims Board. CAL. GOV’T.
24 CODE § 945.4.2 In other words, unless Plaintiff can establish that the confiscations of
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Claim presentation may not be required, however, for plaintiffs whose “property [was] lost and cannot be

26 returned due to the government’s own negligence” and who only seek “specific recovery of his personal

property or its value.” Escamilla v. CDCR, 141 Cal. App. 4th 498, 509-513 (Cal. Ct. App. 2006)(prisoner

27 whose personal effects had been discarded by prison staff was not required to present claim, even
though he would be recovering value of possessions, not possessions themselves); accord City of

28 Stockton v. Super. Ct., 171 P.3d 20, 28-29 (Cal. 2007); Holt v. Kelly, 574 P.2d 441, 444 (Cal. 1978);
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1 his property were carried out pursuant to an established procedure, Plaintiff will
2 probably have to challenge them at the state, not federal, level.
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2. Library/Copy Restrictions

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An inmate does not have an “abstract, freestanding right to a law library or legal

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assistance.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)(citing Lewis v. Casey,

7 4518 U.S. 343, 351 (1996)).

However, he may establish that prison officials

8 unconstitutionally denied him access to the courts if he can “demonstrate that the
9 alleged shortcomings in the library or legal assistance program hindered his efforts to
10 pursue a legal claim.” Hebbe, 627 F.3d at 342; see also Keenan v. Hall, 83 F.3d 1083,
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1094 (9th Cir. 1996)(plaintiff must demonstrate actual injury to show that copy services
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denied his access to the courts). Prisons have significant latitude in restricting inmates’
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access to reading materials not related to legal research, provided the restrictions are
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15 justified by a legitimate penological interest. Beard v. Banks, 548 U.S. 521, 530-533
16 (2006)(applying Turner factors to conclude that a complete ban on magazines,
17 newspapers, and photographs for high-security inmate was constitutional).
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3. Lockdown

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The deprivations caused by an extended lockdown, including prohibitions on

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outdoor exercise, can become sufficiently severe to constitute an Eighth Amendment

22 violation. See, e.g., Thomas v. Ponder, 611 F.3d 1144, 1146 (9th Cir. 2010)(health risk
23 posed by long-term denial of outdoor exercise is obvious and may rise to the level of a
24 constitutional violation); Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980)(denial
25 of exercise even in state of emergency can be unconstitutional); Mitchell v. Felker, No.
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27 Minsky v. City of Los Angeles, 520 P.2d 726, 733 n. 14 (Cal. 1974). This latter category of plaintiffs can
seek redress directly by filing a petition for a writ of mandamus. See Escamilla, 141 Cal. App. 4th at 511-

28 512.

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1 2: 08-cv-1196 2012 WL 2521827, at *4-*6 (E.D. Cal. June 28, 2012)(Plaintiffs’ Eighth
2 and Fourteenth Amendment claims based on lockdowns survived Motion to Dismiss).
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However, a prisoner’s right to outdoor exercise is not “absolute and indefeasible.”

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Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2009). Where a facility has
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“substantial reasons for imposing lockdowns” and there is no indication that “the

7 lockdowns were meant to be punitive or were otherwise implemented in bad faith,”
8 defendants may constitutionally limit access to outdoor exercise in an effort to restore
9 order and protect inmate safety. Id., at 1069.
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To establish that a lockdown created conditions of confinement that violated the
Eight Amendment, the prisoner must establish first, that he was deprived of the “minimal
civilized measure of life’s necessities,” and second, that defendants acted with
deliberate indifference to his health and safety. Farmer v. Brennan, 511 U.S. 825, 834-

15 835 (1994). “Although exercise is one of the basic human necessities protected by the
16 Eighth Amendment, a temporary denial of outdoor exercise with no medical effects is
17 not a substantial deprivation.” May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997). A
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finding that the purpose of the lockdown was to “prevent further attacks, injuries, and
homicides” will generally defeat an argument that prison officials acted with deliberate

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indifference. See Norwood v. Woodford, 661 F.Supp. 2d 1148, at 1157 (S.D. Cal. 2007).
4. Dental Care
The Eighth Amendment of the United States Constitution entitles prisoners to

24 medical and dental care, and a prison official violates the Amendment when he acts
25 with deliberate indifference to an inmate’s serious medical needs. Estelle v. Gamble,
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429 U.S. 97, 104(1976); Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014); Wilhelm

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v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096
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1 (9th Cir. 2006). “A medical need is serious if failure to treat it will result in significant
2 injury or the unnecessary and wanton infliction of pain.” Peralta, 744 F.3d at 1081 (citing
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Jett, 439 F.3d at 1096). Examples of a serious medical need include “the existence of

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an injury that a reasonable doctor or patient would find important and worthy of
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comment or treatment; the presence of a medical condition that significantly affects an

7 individual’s daily activities; or the existence of chronic and substantial pain.” Colwell v.
8 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
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A medical provider shows deliberate indifference to such a need if he “knows of

10 and disregards an excessive risk to inmate health.” Peralta, 744 F.3d at 1082 (citing
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Farmer, 511 U.S. at 837. This “requires more than ordinary lack of due care.” Colwell,
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763 F.3d at 1066 (citing Farmer, 511 U.S. at 835). Instead, the provider must “be aware
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of facts from which the inference could be drawn that a substantial risk of serious harm
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15 exists, and he must also draw the inference.” Colwell, 763 F.3d at 1066. Prison medical
16 providers may demonstrate deliberate indifference when they “deny, delay, or
17 intentionally interfere with medical treatment,” or provide substandard care. Id.
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Many California correctional facilities are not adequately staffed with dentists or
hygenists. See Peralta, 744 F.3d at 1082 (noting shortage of dental staff at Lancaster

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State Prison). Such staff shortages alone do not automatically establish deliberate

22 indifference, particularly where an inmate is suing an individual provider. Id., at 1084. (“a
23 prison medical official who fails to provide needed treatment because he lacks the
24 necessary resources can hardly be said to have intended to punish the inmate.”)
25 However, “chronic shortage of resources may well amount to a policy or practice for
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which monetary relief may be available under Monell,” discussed supra. Id., at 1084.

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5. Visitation
Inmates do not have a clearly established constitutional right to receive visits, in
particular contact visits. Dunn v. Castro, 621 F.3d 1196, 1202 (9th Cir. 2010); Toussaint
v. McCarthy, 801 F.2d 1080, 1114 (9th Cir. 1986)(“To the extent that denial of contact

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visitation is restrictive and even harsh, it is part of the penalty that criminals pay for their

7 offenses against society”). The Supreme Court has upheld a variety of restrictions on
8 visitation (including denials of contact visitation, as well as limitations on the people
9 allowed to visit an inmate) against First, Eighth, and Fourteenth Amendment challenges.
10 Overton v. Bazzetta, 539 U.S. 126, 133 (2003).
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6. Commissary Prices
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Inflated commissary prices do not provide a basis for a constitutional claim
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because there is no constitutional right to purchase items from the canteen. See
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15 Keenan, 83 F.3d at 1092; Dushane v. Sacramento Cty. Jail, No. 2:13-cv-2518 2014 WL
16 3867468, at *6 (E.D. Cal. August 6, 2014); Thomas v. Madera Ct. Dept. of Corrections,
17 No. 1:06-cv-00649 2010 WL 1444536, at *3 (E.D. Cal. April 9, 2010)(inmate’s complaint
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about purchasing noodles at inflated price was “frivolous”).
7. Food Quality

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While the Eighth Amendment requires jail officials to provide inmates with

22 nutritionally adequate meals, Foster v. Runnels, 554 F.3d 807, 812-813 (9th Cir. 2009),
23 it does not require that the food be tasty, varied, or aesthetically pleasing. See LeMaire
24 v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). For an inmate’s complaints about his diet
25 to rise to the level of a constitutional deprivation, the plaintiff must show that the food he
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received was not adequate to maintain his health, e.g. by alleging facts indicating he

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lost weight or incurred health problems. See Foster, 554 F.3d at 813 n.2; LeMaire, 12
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1 F.3d at 1456; Stewart v. Block, 938 F.Supp. 582, 588 (C.D. Cal. 1996). In addition, the
2 inmate must show that the responsible prison officials had a “sufficiently culpable state
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of mind,” and were deliberately indifferent to the inmate’s health and safety. Farmer,

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511 U.S. at 834.
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D. State Claims
In addition to his constitutional claims, Plaintiff alleges that some of the jail’s

8 policies, including the restrictions on visitation, the condition of the recreational facilities,
9 the imposition of processing fees at the commissary, and the quality of the food violated
10 state law and prison regulations. The court declines to address these state claims for
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several reasons. First, as with his constitutional claims, Plaintiff has not indicated that
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he himself was injured by these policies. Second, he has not alleged compliance with
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the California Tort Claims Act a prerequisite to filing suit.
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Under the California Tort Claims Act (“CTCA”), Plaintiff may not maintain an

16 action for damages against a public employee unless he has presented a written claim
17 to the state Victim Compensation and Government Claims Board. Cal. Gov't Code §§
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905, 911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470,
1477 (9th Cir. 1995). Failure to demonstrate such compliance constitutes a failure to

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state a cause of action and will result in the dismissal of state law claims. State of

22 California v. Superior Court (Bodde), 32 Cal.4th 1234, 1240 (2004).
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Third, the Court will not exercise supplemental jurisdiction over a state law claim

24 absent a cognizable federal claim. 28 U.S.C. § 1367(a); Herman Family Revocable
25 Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir.2001); see also Gini v. Las Vegas
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Metro. Police Dep't, 40 F.3d 1041, 1046 (9th Cir.1994). “When . . . the court dismisses

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the federal claim leaving only state claims for resolution, the court should decline
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1 jurisdiction over the state claims and dismiss them without prejudice.” Les Shockley
2 Racing v. Nat’l Hot Rod Ass'n, 884 F.2d 504, 509 (9th Cir. 1989).
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The court will reexamine the issue of supplemental jurisdiction should plaintiff

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amend his complaint to include federal claims.
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VI.

CONCLUSION AND ORDER

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Plaintiff’s Complaint fails to state any cognizable claim.

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The Court grants Plaintiff the opportunity to correct the deficiencies analyzed

9 above in an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000);
10 Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff amends, he may not
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change the nature of this suit by adding new, unrelated claims in his amended
12
complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”
13
complaint).
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An amended complaint would supersede the prior complaint. Forsyth v. Humana,

16 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 f.2d 565, 567 (9th Cir.
17 1987). Thus, it must be “complete in itself without reference to the prior or superseded
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pleading,” Local Rule 220.
Based on the foregoing, it is HEREBY ORDERED that:

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failure to state a claim upon which relief may be granted,

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2.

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Plaintiff's signed first amended complaint (ECF No. 1) is DISMISSED for

The Clerk's Office shall send Plaintiff (1) a blank civil rights amended
complaint form and (2) a copy of his complaint filed September 8, 2014,

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Plaintiff shall file an amended complaint within thirty (30) days from
service of this order, and

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4. If Plaintiff fails to comply with this order, the Court will recommend that this

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action be dismissed, without prejudice, for failure to obey a court order.

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5 IT IS SO ORDERED.
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Dated:

March 20, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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