Bealer v. Kern Valley State Prison

Filing 15

ORDER DISMISSING FIRST AMENDED COMPLAINT and SECOND AMENDED COMPLAINT CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 8/18/17: 21-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

ANTWOINE BEALER,

10
11
12
13

Case No. 1:16-cv-00367-DAD-SKO (PC)

Plaintiff,

ORDER DISMISSING FIRST AMENDED
COMPLAINT AND SECOND AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.
KERN VALLEY STATE PRISON,
Defendant.

(Docs. 13, 14)
TWENTY-ONE (21) DAY DEADLINE

14
15

BACKGROUND

16

Plaintiff, Antwoine Bealer, is a state prisoner proceeding pro se in this civil rights action

17

pursuant to 42 U.S.C. ' 1983. In the Complaint, Plaintiff alleged that, in 2010, while housed at

18

KVSP he was wrongly placed in the Administrative Segregation Unit (“ASU”) for refusing to

19

“compact” celling (move into a cell with another inmate). (Doc. 1.) In approximately September

20

of 2011, Plaintiff was allegedly released to the general population and was single-celled. (Id.)

21

Plaintiff also alleged that even though the issue was resolved in 2010-2011, in May 9, 2014, he

22

was placed in ASU for approximately seven months and the 2010 incident was wrongly used as

23

an aggravating factor to later place him in more restrictive housing in the Security Housing Unit

24

(“SHU”) where he remains. (Id.) Plaintiff alleged that these events violated his rights to due

25

process, equal protection, to be free from cruel and unusual punishment, and to not be subjected

26

to double jeopardy. (Id.) The Complaint was screened and dismissed with leave to amend as

27

Plaintiff failed to state a cognizable claim. (Doc. 10.) Plaintiff filed a First Amended Complaint

28

(Doc. 13), and subsequently, a Second Amended Complaint (Doc. 14).
1

1
2
3
4

ANALYSIS
The First Amended Complaint exceeds the leave to amend granted in the first screening
order. In the First Amended Complaint, Plaintiff now alleges:

14

While at KVSP detained in the “administrative segregation unit (ASU) for
the false charge of threatening an peace officer, I was continually subjected to
harassment and sexual assault by male correctional officers. I sent inmate request
slips to the sergeant in the unit, but I never received an (sic) response nor did the
harassment and assaults stop.
I then submitted an (sic) 602 administrative appeal, and exhausted my
remedies to the third level. While housed in the ASU, I was retaliated against by
CDC“R” staff for submitting and maintaining an (sic) suit against Sergeant
Brannum and Officer Rios for unnecessary and excessive force and Sergeant
Epperson for sexual assault, amongst other CDC“R” staff. I was subjected to
sexual assault in the form of officers shining their flashlights onto my groin area
while I was lying on the bunk, when they did their security checks. I was also
harassed by officers shining their flashlights into my eyes while doing security
checks. I was housed at KVSP for approximately, six (6) years, so I do not
believe sexual assault is an (sic) custom, at least of heterosexual and
nontransgendered (sic) prisoners, but I do believe retaliation and harassment of
inmates who have assaults on staff in their file or who submit administrative
appeals or suits, is an (sic) custom, and I was, sexually assaulted.

15

The order that screened Plaintiff’s original complaint explicitly stated that “Plaintiff may

5
6
7
8
9
10
11
12
13

16

not change the nature of this suit by adding new, unrelated claims in his first amended

17

complaint.” (Doc. 10, p. 11 (citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)).) Despite

18

this direction, Plaintiff changed both the nature of his claims and the prison employees who

19

allegedly violated his civil rights. Accordingly, the First Amended Complaint is dismissed since

20

it exceeded the leave to amend previously granted.

21

The document filed as a second amended complaint is not an amended complaint. Instead

22

of stating factual allegations, the second amended complaint sets forth a number of arguments as

23

to why Plaintiff should not be required to amend his original complaint, and additional legal

24

arguments regarding Plaintiff’s belief that he should be allowed to proceed on his original

25

complaint. (Doc. 14.)

26

Neither the First nor Second Amended Complaints comply with the order that screened

27

and dismissed the original Complaint and, to the extent that they are considered pleadings, both

28

are dismissed. Plaintiff is granted one last opportunity to amend his allegations based on the
2

1

claims raised in the original Complaint and standards stated in the screening order.

2

ORDER

3

For the reasons set forth above, Plaintiff's First and Second Amended Complaints are

4

dismissed with leave to file a third amended complaint, or a notice of voluntary dismissal within

5

twenty-one (21) days. Any first amended complaint shall not exceed twenty-five (25) pages in

6

length, exclusive of exhibits. Plaintiff shall file a motion seeking an extension of time, if needed,

7

to comply with this order no later than twenty-one (21) days from the date of service of this

8

order.

9

Plaintiff must demonstrate in any third amended complaint how the alleged conditions

10

have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th

11

Cir. 1980). The third amended complaint must allege in specific terms how each named

12

defendant is involved. There can be no liability under section 1983 unless there is some

13

affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

14

v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

15

Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

16

Plaintiff's third amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and

17

plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon

18

which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

19

Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be

20

[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555

21

(2007) (citations omitted).

22

Plaintiff is also reminded that an amended complaint supercedes the original, Lacey v.

23

Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

24

2012) (en banc), and must be “complete in itself without reference to the prior or superceded

25

pleading,” Local Rule 220.

26

The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

27

by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff

28

may not change the nature of this suit by adding new, unrelated claims in his first amended
3

1

complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). If

2

Plaintiff violates this direction again, it will be recommended that the action be dismissed

3

based on Plaintiff’s failure to obey a court order.

4

Based on the foregoing, it is HEREBY ORDERED that:

5

1.

6

Plaintiff's First and Second Amended Complaints are dismissed, with leave to
amend;

7

2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form, a copy of the

8

original complaint, filed on March 17, 2016, (Doc. 1), and a copy of the Order

9

Dismissing Complaint With Leave to Amend, issued on January 27, 2017, (Doc.

10

10);

11

3.

Within twenty-one (21) days from the date of service of this order, Plaintiff must

12

file a third amended complaint curing the deficiencies identified by the Court in

13

this order or a notice of voluntary dismissal; and

14

4.

If Plaintiff fails to comply with this order, a recommendation will issue that

15

this action be dismissed for failure to obey a court order and for failure to

16

state a cognizable claim.

17
18
19
20

IT IS SO ORDERED.
Dated:

August 18, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
4

.