Corena v. Holland et al

Filing 9

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Erica P. Grosjean on 02/01/2017. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JORGE CORENA,
Plaintiff,

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v.

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KIM HOLLAND, et al.,
Defendants.

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1:16-cv-01025-EPG (PC)
ORDER DISMISSING PLAINTIFF’S FIRST
AMENDED COMPLAINT WITH LEAVE TO
AMEND
(ECF NO. 8)
THIRTY DAY DEADLINE

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I.

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Jorge Corena (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed a complaint on July 15,

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2016. (ECF No. 1). Among other things, Plaintiff alleged that he was assaulted by Defendants

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Rodriguez, Cerveza, and Doe.

BACKGROUND

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The Court screened Plaintiff’s complaint and found that it stated a claim for excessive

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force in violation of the Eighth Amendment against Defendants Rodriguez, Cerveza, and Doe,

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and a claim for retaliation in violation of the First Amendment against Defendants Rodriguez

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and Doe. (ECF No. 7). The Court allowed Plaintiff to choose between going forward with the

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claims the Court found cognizable, filing a First Amended Complaint, or standing on the

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complaint subject to dismissal of claims and defendants as laid out in the order. (Id.).

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On January 23, 2017, Plaintiff filed a First Amended Complaint. (ECF No. 8). The

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First Amended Complaint purported to be a class action. It did not include detailed factual

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allegations. Instead, it attached the Court’s screening order and made arguments based on that

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order, such as “The United States Magistrate Judge acknowledged in its ordered . . . ‘causal-

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connection’ . . . .” Plaintiff also claimed that the California Department of Corrections and

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Rehabilitation needs to develop a policy against civil rights violations.

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\\\
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II.

DISMISSAL OF FIRST AMENDED COMPLAINT WITH LEAVE TO
AMEND

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Plaintiff’s First Amended Complaint is not a proper complaint. Rather than alleging

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facts and legal claims, Plaintiff has attached the Court’s order and made arguments based on

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that order. As the Court explained before “Plaintiff is advised that an amended complaint

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supersedes the original complaint, Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir.

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

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pleading, Local Rule 220.” (ECF No. 7, pgs. 11-12). A complaint is required to contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

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Civ. P. 8(a)(2). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678; Moss v. U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

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conclusions are not.

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plausibility standard. Id.

Id.

The mere possibility of misconduct falls short of meeting this

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Thus, if Plaintiff chooses to file an amended complaint rather than going forward on the

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claims allowed in Plaintiff’s first complaint, Plaintiff needs to submit a complete amended

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complaint with all factual allegations included in that complaint, without reference to the earlier

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complaint or the Court’s order. It must be complete in itself. The Court will screen that

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amended complaint in its entirety.

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It is also worth noting that the Court’s screening order only concluded that Plaintiff had

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asserted factual allegations that set forth certain claims. It did not make any ruling on whether

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those facts were true. The legal ruling was only that Plaintiff would be entitled to go forward

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in a lawsuit against Defendants Rodriguez, Cerveza, and Doe for a violation of the Eighth

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Amendment and against Defendants Rodriguez and Doe for a violation of the First

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Amendment. If Plaintiff decides to go forward on those claims, the Court will authorize

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service on those defendants and then proceed with the case.

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Additionally, Plaintiff is not entitled to file a class action lawsuit, or assert claims on

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behalf of anyone except himself, because he is appearing pro se. Simon v. Hartford Life, Inc.,
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546 F.3d 661, 664–65 (9th Cir. 2008) (“courts have routinely adhered to the general rule

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prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative

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capacity”) (citing cases); Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“a litigant

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appearing in propria persona has no authority to represent anyone other than himself”). To the

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extent Plaintiff asserts his claims as a class action, they will be dismissed. Plaintiff may only

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represent himself pro se (without a lawyer), not others.

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III.

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Plaintiff’s First Amended Complaint does not state a claim under the standard set out by

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Rule 8 of the Federal Rule of Civil Procedure and improperly attempts to assert claims on

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CONCLUSION AND ORDER

behalf of others. For these reasons, it will be dismissed.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, “leave to amend shall be

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freely given when justice so requires.” Accordingly, the Court will provide Plaintiff with time

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to file an amended complaint curing the deficiencies identified above. Lopez v. Smith, 203

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F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an amended complaint

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within thirty days if he chooses to do so. He can also stand on his original complaint and go

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forward on the claims already found cognizable by this Court.

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Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey

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v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and that it must be

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complete in itself without reference to the prior or superseded pleading, Local Rule 220.

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Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged. The amended complaint should be

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clearly and boldly titled “Second Amended Complaint,” refer to the appropriate case number,

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and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff shall

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either:

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a. File a Second Amended Complaint, which is complete in itself, and provides

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a short a plain statement of the claims and supporting facts; or

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b. Notify the Court in writing that he is willing to proceed with his original

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complaint, dated July 15, 2016 (ECF No. 1), but only on the claims allowed

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in the Court’s order dated December 20, 2016 (a claim for excessive force in

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violation of the Eighth Amendment against Defendants Rodriguez, Cerveza,

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and Doe, and a claim for retaliation in violation of the First Amendment

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against Defendants Rodriguez and Doe).

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3.

If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the

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amended complaint “Second Amended Complaint” and refer to the case number

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1:16-cv-01025-EPG; and

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4.

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Failure to comply with this order may result in the dismissal of this action for
failure to comply with a court order.

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IT IS SO ORDERED.
Dated:

February 2, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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