Kindred v. Allenby et al

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 4/29/2015. Amended Complaint due by 6/1/2015. (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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RICHARD S. KINDRED,

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Plaintiff,

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CASE NO. 1:14-cv-01652-AWI-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF NO. 1)
CLIFF ALLENBY, et al.,

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Defendants.

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. His complaint is before the Court for

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screening.

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I.

SCREENING REQUIREMENT

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The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if

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the court determines that . . . the action or appeal . . . fails to state a claim upon which

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relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

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

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated and (2)

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that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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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, 556 U.S.

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662, 678 (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 to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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Plaintiff is detained at Coalinga State Hospital (“CSH”), where the acts giving rise

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to his complaint occurred. Plaintiff names as Defendants: (1) the California Department

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of State Hospitals, (2) Cliff Allenby, Director of the California Department of State

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Hospitals, (3) Audrey King, (4) Remi Smith, (5) Mathew Collins, (6) Jeanette Rivera,

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(7) Angela Padilla, (8) Guadalupa McKenzie, (9) Kenneth Underwood, (10) Marissa

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Bigot, (11) Paul Alkehougie, (12) Cinithia Martinez, (13) Angel Felix, (14) Jose

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Lopez,(15) Edward Tongwa, (16) Jorge Zavala, (17) Kenneth Bell, (18) Tom Faina, (19)

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Daniel Wagoner, (20) Dr. Jeffrey Hasson, and (21) Doug Veit.

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Plaintiff’s allegations may be summarized essentially as follows:

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Plaintiff is a practicing Native American. Since May 2014, Defendants have

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interfered with and denied Plaintiff’s right to practice his “way of life” in violation of the

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First Amendment.

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In May 2014, Defendant Bigot denied Plaintiff and other Native Americans the

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right to hold Sunrise Prayer Ceremonies even though other religions are allowed to

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continue this practice. Defendant Bigot retaliated against Plaintiff and other Native

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Americans who displayed sacred or spiritual items. Plaintiff was retaliated against for

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having a Dream Catcher hanging over his head,

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Americans. Defendant Bigot ordered Defendant Rivera to confiscate Plaintiff’s spiritual

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rug. Defendant Felix desecrated Plaintiff’s medicine bag by attempting to confiscate it.

a common practice for Native

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Defendants Allenby, King, Smith, Collins, Padilla, McKenzie, Underwood,

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Alkehougie, Martinez, Lopez, Tongwa, Zavala, and Bell participated in denying Plaintiff

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spiritual items that are approved by the California Department of State Hospitals and

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CSH and/or participated in retaliation against and harassment of Plaintiff.

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Plaintiff also was denied his right to Due Process under the Fifth and Fourteenth
Amendments as follows:
In July and September 2014, Plaintiff received spiritual packages from a
recognized vendor of Native American spiritual items. Plaintiff was denied his items.

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Plaintiff filed complaints with the California Office of Patient’s Rights. His

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complaints were not reviewed by the Office’s Advocates or Defendant King within the

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allotted time frame.

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Defendants Smith, Collins, Bigot, Veit, Hasson, Zavala, and McKenzie interfered

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with Plaintiff’s ability to file Elder Abuse/Dependent Adult Abuse complaints. These

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Defendants also refused to adhere to CSH administrative directives regarding “Denial of

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Rights” and the seizure of contraband property.
Defendants King and Michell1 failed to investigate allegations of Elder/Dependent

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Adult Abuse as required under state law.

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Defendant Rivera filed false police reports with the Department of Police Services
to justify assaulting Plaintiff on August 29, 2014.

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CSH failed to investigate and charge Defendant Bell with Elderly/Dependent Adult

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Abuse despite Defendant Bell’s continuous retaliation against Plaintiff for filing

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complaints. This was done to circumvent the “Statewide Contraband List.”

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Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive

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damages.

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IV.

ANALYSIS

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A.

Improper Joinder of Unrelated Claims

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Federal Rule of Civil Procedure 18(a) allows a party to “join, as independent or

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alternative claims, as many claims as it has against an opposing party.” However, Rule

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20(a)(2) permits a plaintiff to sue multiple defendants in the same action only if “any right

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to relief is asserted against them jointly, severally, or in the alternative with respect to or

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arising out of the same transaction, occurrence, or series of transactions or

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occurrences,” and there is a “question of law or fact common to all defendants.” “Thus

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multiple claims against a single party are fine, but Claim A against Defendant 1 should

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not be joined with unrelated Claim B against Defendant 2. Unrelated claims against

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different defendants belong in different suits . . .” See George v. Smith, 507 F.3d 605,

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607 (7th Cir.2007) (citing 28 U.S.C. § 1915(g)).

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Plaintiff attempts to bring several unrelated claims in this action. Based on the

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minimal facts alleged, it is unclear whether Plaintiff’s claims regarding his Native

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American practices arise out of the same transaction or occurrence or raise a common

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Plaintiff did not identify Michell as a Defendant.

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question of law or fact. Furthermore, these claims plainly do not arise out of the same

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transaction or occurrence as Plaintiff’s allegations that certain Defendants interfered with

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his ability to file administrative grievances or legal claims, his allegations regarding

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Elder/Dependent Adult Abuse, or his allegations regarding false police reports. Plaintiff

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may not bring all of these claims in a single action.

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Plaintiff will be given leave to amend. If he chooses to do so, he must proceed in

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this action only on those claims against different Defendants that arise out of the same

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transaction or occurrence, or that involve a common question of law or fact. The

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remainder of the screening order will address the legal standards applicable to what

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appear to be Plaintiff’s claims.

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B.

Linkage

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Under § 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons

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v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Liability may not be imposed on supervisory personnel under the theory of

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respondeat superior, as each defendant is only liable for his or her own misconduct.

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Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable

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if they “participated in or directed the violations, or knew of the violations and failed to act

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to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.

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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570

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(9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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Plaintiff alleges that Defendants Allenby, King, Smith, Collins, Padilla, McKenzie,

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Underwood, Alkehougie, Martinez, Lopez, Tonga, Zavala, and Bell denied Plaintiff

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spiritual items and/or participated in retaliation against and harassment of Plaintiff. This

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allegation is insufficient to link the Defendants to any unconstitutional conduct. Plaintiff

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must allege specific facts that identify how each Defendant personally participated in the

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denial of his rights, or knew of the violations and failed to act.

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Additionally, Plaintiff does not identify which Defendants, if any, were responsible

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for denying him spiritual packages. Nor does he identify how Defendants Smith, Collins,

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Bigot, Veit, Hasson, Zavala, and McKenzie interfered with his ability to file Elder

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Abuse/Dependent Adult Abuse complaints or improperly seized Plaintiff’s property.

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Lastly, Plaintiff lists no factual allegations concerning Defendants Faina and Wagoner.

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Plaintiff has not alleged how these Defendants personally participated in the

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deprivation of his rights. If Plaintiff chooses to file an amended complaint he must link

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each named defendant to his claims.

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C.

Eleventh Amendment Immunity

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Plaintiff has named the California Department of State Hospitals as a Defendant.

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However, the Eleventh Amendment erects a general bar against federal lawsuits brought

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against the state. Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010) (citation

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omitted). While “[t]he Eleventh Amendment does not bar suits against a state official for

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prospective relief,” id. at 1066, suits against the state or its agencies are barred

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absolutely, regardless of the form of relief sought, e.g., Pennhurst State Sch. & Hosp. v.

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Halderman, 465 U.S. 89, 100 (1984). Thus, Plaintiff may not maintain a claim against the

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California Department of State Hospitals.

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D.

Free Exercise

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Civil detainees retain the protections afforded by the First Amendment, including

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the right to freely practice their religion. See O’Lone v. Estate of Shabazz, 482 U.S. 347,

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348 (1987) (citations omitted); see also Youngberg v. Romero, 457 U.S. 307, 322 (1982)

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(holding civilly detained persons must be afforded “more considerate treatment and

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conditions of confinement than criminals whose conditions of confinement are designed

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to punish”). In order to establish a cause of action under the Free Exercise Clause,

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Plaintiff must show that a restriction substantially burdened the practice of his religion by

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preventing him from engaging in conduct which he sincerely believes is consistent with

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his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). Additionally, Plaintiff

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must show that the restriction is not required to maintain institutional security and

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preserve internal order and discipline. See Pierce v. Cnty. of Orange, 562 F.3d 1190,

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1209 (9th Cir. 2008).

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Plaintiff has alleged insufficient facts for the Court to determine whether he has

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suffered a Free Exercise violation. Plaintiff alleges that Defendant Bigot denied him the

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right to hold Sunrise Prayer Ceremonies, retaliated against him for displaying spiritual

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items, and ordered that his spiritual rug be confiscated. He also alleges that Defendant

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Rivera confiscated his spiritual rug and Defendants Felix attempted to confiscate his

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medicine bag. Finally, he alleges that numerous Defendants denied him spiritual items or

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packages, retaliated against him and harassed him. However, Plaintiff has not alleged

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that any of this conduct substantially burdened the exercise of his religion. Nor has he

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presented facts to show that the Defendants’ conduct was not required to maintain

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institutional security or to preserve internal order and discipline. Lastly, Plaintiff’s

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conclusory allegations of harassment and retaliation leave the Court no basis for

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determining whether the practice of Plaintiff’s religion was burdened.

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If Plaintiff chooses to amend, he must allege facts to show that the practice of his

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religion was substantially burdened by Defendants’ conduct, and that their conduct was

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not required to maintain institutional security or preserve internal order and discipline.

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E.

Equal Protection

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Plaintiff alleges he was denied the right to perform Sunrise Prayer Ceremonies

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even though other religions were allowed to do so. In this regard, Plaintiff may intend to

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allege an Equal Protection claim.

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The Equal Protection Clause requires that persons who are similarly situated be

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treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

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(1985). An equal protection claim may be established by showing that the defendant

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intentionally discriminated against the plaintiff based on the plaintiff's membership in a

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protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of

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Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were

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intentionally treated differently without a rational relationship to a legitimate state

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purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Lazy Y

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Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of

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Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). To allege a religious discrimination claim,

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Plaintiff must allege facts sufficient to show that prison officials intentionally discriminated

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against him on the basis of his religion by failing to provide him a reasonable opportunity

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to pursue his faith compared to other similarly situated religious groups. Cruz v. Beto,

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405 U.S. 319, 321-22 (1972) (per curiam).

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Plaintiff has not alleged that any of the Defendants intentionally discriminated

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against him on the basis of his religion or that he was not provided a reasonably

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opportunity to pursue his faith compared to other similarly situated religious groups.

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Although Plaintiff alleges that he was prevented from engaging in Sunrise Prayer

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Ceremonies that were permitted for other groups, he has not stated whether he was

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provided other reasonably opportunities to pursue his faith.

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F.

Retaliation

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Plaintiff alleges he was retaliated against in relation to practicing his Native

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American “way of life.” He also alleges that Defendant Bell retaliated against him for

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filing complaints.

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“[A] viable claim of First Amendment retaliation entails five basic elements: (1) An

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assertion that a state actor took some adverse action against an inmate (2) because of

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(3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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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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The second element focuses on causation and motive. See Brodheim v. Cry, 584

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F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a

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“‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting

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Sorrano’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can

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be difficult to establish the motive or intent of the defendant, a plaintiff may rely on

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circumstantial evidence. Bruce, 351 F.3d at 1289 (finding that a prisoner established a

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triable issue of fact regarding prison officials’ retaliatory motives by raising issues of

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suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th

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Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be

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considered as circumstantial evidence of retaliatory intent”).
In terms of the third prerequisite, filing a grievance is a protected action under the
First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).

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With respect to the fourth prong, “[it] would be unjust to allow a defendant to

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escape liability for a First Amendment violation merely because an unusually determined

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plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty.,

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192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an

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official’s acts would chill or silence a person of ordinary firmness from future First

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Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192

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F.3d at 1300).

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With respect to the fifth prong, a prisoner must affirmatively allege that “‘the prison

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authorities’ retaliatory action did not advance legitimate goals of the correctional

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institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson,

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778 F.2d 527, 532 (9th Cir. 1985).

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Plaintiff does not specify in any way how he was retaliated against. The Court is

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unable to discern whether he was subject to any adverse action that would chill a person

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of ordinary firmness. Additionally, Plaintiff has supplied no facts from which it may be

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inferred that any such adverse action was taken because of Plaintiff’s protected First

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Amendment activities or that such action did not advance legitimate correctional goals.

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Plaintiff will be given leave to amend.

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G.

Due Process

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Plaintiff states his intent to bring a Due Process claim under both the Fifth and the

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Fourteenth Amendments. “[T]he Fifth Amendment’s due process clause only applies to

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the federal government.” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).

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Because all of the named Defendants appear to be state officials, the Court will analyze

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Plaintiff’s claims under the Fourteenth Amendment.

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Plaintiff appears to allege that his Due Process rights were violated when (1) his

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spiritual packages were denied; (2) his complaints to the California Office of Patient’s

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Rights were not timely reviewed, and (3) a false police report was filed against him.

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The Due Process Clause protects prisoners from being deprived of property

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without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). While the

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deprivation of property pursuant to an established government procedure is actionable

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under the Due Process Clause, Hudson v. Palmer, 468 U.S. 517, 532 (1984) (citing

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Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)),2 neither negligent nor

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unauthorized intentional deprivations of property by a governmental employee

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“constitute a violation of the procedural requirements of the Due Process Clause of the

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Fourteenth Amendment if a meaningful post deprivation remedy for the loss is available.”

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Hudson, 468 U.S. at 533; see also Raditch v. United States, 929 F.2d 478, 481 (9th Cir.

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1991) (“Although Hudson involved § 1983 and the Fourteenth Amendment, the same

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due process principles apply to the federal government through the Fifth Amendment.”).

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Plaintiff has not alleged sufficient facts for the Court to determine whether the

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denial of his spiritual packages was pursuant to an established government procedure or

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An authorized deprivation is one carried out pursuant to established state procedures, regulations, or
statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir.1985); see also Knudson v. City of Ellensburg,
832 F.2d 1142, 1149 (9th Cir.1987).

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the result of negligent, or intentional but unauthorized conduct of any of the Defendants.

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Assuming the latter, such an unauthorized, intentional deprivation of property requires

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that Plaintiff be provided a meaningful post-deprivation remedy. California law provides a

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post-deprivation remedy for Plaintiff’s property deprivation. Barnett v. Centoni, 31 F.3d

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813, 816-17 (9th Cir. 1994).

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Plaintiff’s allegation that his complaints to the California Office of Patient’s Rights

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were not timely reviewed does not state a Due Process claim. “The Fourteenth

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Amendment’s Due Process Clause protects persons against deprivations of life, liberty,

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or property; and those who seek to invoke its procedural protection must establish that

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one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

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Plaintiff does not a have protected liberty interest in processing administrative

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complaints, and therefore, he cannot pursue a claim for denial of due process with

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respect to the handling or resolution of those complaints. See Ramirez v. Galaza, 334

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F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)).

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Plaintiff’s allegation that Defendant Rivera filed a false police report against him

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also is insufficient to state a claim. The Ninth Circuit has recognized “a clearly

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established constitutional due process right not to be subjected to criminal charges on

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the basis of false evidence that was deliberately fabricated by the government.”

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Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001); see also Costanich v.

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Dep't of Soc. & Health Servs., 627 F.3d 1101, 1111-12 (9th Cir. 2010) (relying on

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Devereaux to hold that a state investigator “who deliberately mischaracterizes witness

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statements in her investigative report also commits a constitutional violation”). To state

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such a claim, Plaintiff must point to evidence that supports at least one of the following

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two propositions: “(1) Defendants continued their investigation of [Plaintiff] despite the

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fact that they knew or should have known that he was innocent; or (2) Defendants used

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investigative techniques that were so coercive and abusive that they knew or should

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have known that those techniques would yield false information.” Devereaux, 263 F.3d

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at 1076. Plaintiff has not alleged such facts, nor has he alleged whether he was

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subjected to criminal charges.

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H.

Access to Courts

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Plaintiff alleges Defendants Smith, Collins, Bigot, Veit, Hasson, Zavala, and

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McKenzie interfered with Plaintiff’s ability to file Elder Abuse/Dependent Adult Abuse

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complaints. It is unclear whether the complaints Plaintiff refers to were administrative or

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intended to be filed in Court. Nevertheless, the Court will provide Plaintiff the legal

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standard for a First Amendment Access to Courts claim.

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Plaintiff has a fundamental right of access to the courts. Lewis v. Casey, 518 U.S.

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343, 346 (1996). The right is limited to direct criminal appeals, habeas petitions, and civil

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rights actions. Id. at 354. Claims for denial of access to the courts may arise from the

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frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking

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access claim) or from the loss of a meritorious suit that cannot now be tried (backward-

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looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). A plaintiff must

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show that he suffered an “actual injury” by being shut out of court. Lewis, 518 U.S. at

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350-51. An “actual injury” is one that hinders the plaintiff’s ability to pursue a legal claim.

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Id. at 351.

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I.

State Law Claims

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The Court will not exercise supplemental jurisdiction over any state law claim

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absent a cognizable federal claim. 28 U.S.C. § 1367(a); Herman Family Revocable Trust

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v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001); see also Gini v. Las Vegas Metro.

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Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994). “When . . . the court dismisses the

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federal claim leaving only state claims for resolution, the court should decline jurisdiction

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over the state claims and dismiss them without prejudice.” Les Shockley Racing v.

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National Hot Rod Ass’n, 884 F.2d 504, 509 (9th Cir. 1989).

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Because Plaintiff has not alleged any cognizable federal claims, the Court will not

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exercise supplemental jurisdiction over his state law claim. Plaintiff may amend his state

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law claims, but if he fails to allege a viable federal claim in his amended complaint, the

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Court will not exercise supplemental jurisdiction over his state law claims. 28 U.S.C. §

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1367(a); Herman Family Revocable Trust, 254 F.3d at 805. The Court herein will

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address what appear to be Plaintiff’s intended state law claims.

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Plaintiff states that administrative directives regarding “Denial of Rights” and the

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seizure of contraband were not followed. Plaintiff has not identified the directives he

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believes were not followed. In any event, administrative directives governing the conduct

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of CSH officials do not necessarily entitle a detainee to sue civilly for their violation.

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Plaintiff has cited no authority to support a finding of an implied private right of action for

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violation of such directives, and the Court finds none.

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Plaintiff appears to reference the Elder Abuse and Dependent Adult Civil

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Protection Act (“Act”). See Cal. Welf. & Inst. Code §§ 15600 et seq. The Act provides for

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liability for physical abuse or neglect where the defendant acted with recklessness,

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oppression, fraud or malice in the commission of the abuse. See Cal. Welf. & Inst. Code

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§ 15657. Plaintiff fails to demonstrate applicability of the Act. He does not allege facts

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that he is an “elder” or “dependent adult”, see Cal. Welf. & Inst. Code §§ 15610.23,

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15610.27; that he suffered physical or mental harm or was deprived of necessities to

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avoid such harm, see Cal. Welf. & Inst. Code § 15610.07; and that he has standing to

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enforce the Act, see Cal. Welf. & Inst. Code §§ 15600(i)(j), 15656 15657-15657.8.

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Plaintiff's conclusory allegations fail to allege a violation of the Act and therefore fail to

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state a claim.

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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, 556 U.S. at 677-78. 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 678 (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 rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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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 “First

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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. The Clerk’s Office shall send Plaintiff (1) a blank civil rights complaint form and

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(2) a copy of his complaint, filed October 22, 2014;
2. Plaintiff’s complaint (ECF No. 1) is dismissed for failure to state a claim upon
which relief may be granted;

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3. Plaintiff shall file an amended complaint within thirty (30) days; and if Plaintiff

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fails to file an amended complaint in compliance with this order, the Court will

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dismiss this action, with prejudice, for failure to state a claim and failure to

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comply with a court order.

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IT IS SO ORDERED.
Dated:

April 29, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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