Anaya v. Vugt, et al.

Filing 13

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Sheila K. Oberto on 05/19/2017. (Attachments: # 1 Amended Complaint Form)(Flores, E)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 PETER ANAYA, 8 9 No. 1:16-cv-01094-SKO (PC) Plaintiff, ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND v. (Doc. 12) 10 VAN VUGT, et al., THIRTY (30) DAY DEADLINE 11 Defendants. 12 13 14 INTRODUCTION 15 A. 16 Plaintiff, Peter Anaya, is a state prisoner proceeding pro se and in forma pauperis in this Background 17 civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a 18 cognizable claim upon which relief may be granted. The First Amended Complaint is 19 DISMISSED with leave to file a second amended complaint. 20 B. 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 23 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 24 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 25 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 26 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 27 paid, the court shall dismiss the case at any time if the court determines that . . . the action or Screening Requirement and Standard 28 1 1 2 3 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 4 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 5 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 6 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 7 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 8 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 9 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 10 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 11 when a pleading says too little -- the baseline threshold of factual and legal allegations required 12 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 13 129 S.Ct. 1937 (2009). The Rule is also violated when a pleading says too much. Cafasso, U.S. 14 ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e have never 15 held -- and we know of no authority supporting the proposition -- that a pleading may be of 16 unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also McHenry v. 17 Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, and 18 recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 19 impose unfair burdens on litigants and judges”). 20 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 21 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 22 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 23 “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 24 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 25 legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 26 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 27 28 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 2 1 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 2 However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,” 3 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 4 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 5 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 6 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 7 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 8 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 9 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 10 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short 11 12 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 13 when the opportunity to correct the pleadings has been afforded and there has been no 14 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 15 2013). Plaintiff’s First Amended Complaint violates Rule 8 as it does not provide a short and 16 17 plain statement of his claims. Plaintiff instead repeats various mutations of his allegations 18 throughout 10 claims. Plaintiff’s sparse factual allegations are largely obscured by interjected 19 legal phrases and conclusory statements of liability which render his allegations convoluted and 20 nearly indecipherable. If he chooses to file a second amended complaint, Plaintiff should make it 21 as concise as possible by merely stating which of his constitutional rights he believes were 22 violated by each Defendant and its factual basis. Plaintiff need not and should not cite legal 23 authority or conclusions in a second amended complaint as his factual allegations are accepted 24 as true. 25 26 2. Federal Rule of Civil Procedure 18(a) & 20(a)(2) Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an 27 original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as 28 alternate claims, as many claims as the party has against an opposing party. However, Plaintiff 3 1 may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 2 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 3 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the 4 claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences, 5 and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 6 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 7 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) 8 will the Court review the additional claims to determine if they may be joined under Rule 18(a), 9 which permits the joinder of multiple claims against the same party. 10 The Court must be able to discern a relationship between Plaintiff’s claims or there must 11 be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of 12 constitutional violation (i.e. retaliation by different actors on different dates, under different 13 factual events) does not necessarily make claims related for purposes of Rule 18(a). All claims 14 that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is cautioned 15 that if his amended complaint sets forth improperly joined claims, the Court will determine which 16 claims should proceed and which claims will be dismissed. Visendi v. Bank of America, N.A., 17 733 F3d 863, 870-71 (9th Cir. 2013). Whether any claims will be subject to severance by future 18 order will depend on the viability of claims pled in the amended complaint. 19 20 3. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 21 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 22 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 23 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 24 substantive rights, but merely provides a method for vindicating federal rights elsewhere 25 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 26 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 27 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 28 or causal connection, between each defendant’s actions or omissions and a violation of his federal 4 1 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 2 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 3 A number of Plaintiff’s claims are asserted against “Defendants - CDCR/Officers” which 4 is insufficient to link any specific officer to Plaintiff’s allegations. Plaintiff’s allegations must 5 demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. 6 Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations 7 sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret 8 Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of 9 meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Prisoners 10 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and 11 to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. 12 DISCUSSION Plaintiff’s Allegations 13 A. 14 Plaintiff is currently incarcerated at California State Prison in Corcoran, California (“CSP- 15 Cor”), but complains of acts that occurred during a time when he was housed at the Substance 16 Abuse Treatment Facility (“SATF”) in Corcoran, California. Plaintiff names Officer C. Wickert 17 as the only defendant in the First Amended Complaint and seeks injunctive relief. Plaintiff 18 appears to allege that Officer Wickert accessed Plaintiff’s mental health records, and altered them 19 to reflect that he was sexually abused as a child, and then printed and dispersed Plaintiff’s mental 20 health records to all 750 correctional officers and 4,000 inmates at SATF. Plaintiff contends that, 21 by doing this, Officer Wickert violated a number of his federal civil rights as well as a number of 22 California laws. 23 24 25 26 27 28 Plaintiff fails to state any cognizable claims. He is, however, provided with the applicable legal standards for his delineated claims and an opportunity to file an amended complaint. B. Legal Standards 1. Deliberate Indifference to Plaintiff’s Safety “The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 5 1 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have a duty “to take 2 reasonable measures to guarantee the safety of inmates, which has been interpreted to include a 3 duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th 4 Cir. 2013) (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 5 2005)). 6 To establish a violation of this duty, the prisoner must “show that the officials acted with 7 deliberate indifference to threat of serious harm or injury to an inmate.” Labatad, at 1160 (citing 8 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective 9 and subjective components. 10 First, objectively, the alleged deprivation must be “sufficiently serious” and where a 11 failure to prevent harm is alleged, “the inmate must show that he is incarcerated under conditions 12 posing a substantial risk of serious harm.” Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 13 349 (1981). Second, subjectively, the prison official must “know of and disregard an excessive 14 risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th 15 Cir. 1995). A prison official must “be aware of facts from which the inference could be drawn 16 that a substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511 17 U.S. at 837. Liability may follow only if a prison official “knows that inmates face a substantial 18 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 19 Id. at 847. 20 As noted by the United States Supreme Court, a remedy for unsafe conditions need not 21 await a tragic event. Rather, where a risk/injury has yet to occur, plaintiff may prove that his 22 future health/safety is unreasonably endangered, “that it is contrary to current standards of 23 decency for anyone to be so exposed against his will, and that prison officials are deliberately 24 indifferent to his plight.” Helling, 509 U.S. at 33-35. 25 The question under the Eighth Amendment is whether prison officials, acting with 26 deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to 27 his future health . . . .” Farmer, at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has 28 explained that “deliberate indifference entails something more than mere negligence . . . [but] 6 1 something less than acts or omissions for the very purpose of causing harm or with the knowledge 2 that harm will result.” Id., at 835. The Court defined this “deliberate indifference” standard as 3 equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id., 4 at 836-37. 5 Though Plaintiff states that Officer Wickert’s actions endangered his safety, he does not 6 state any factual allegations to justify this conclusion. It is known and generally accepted that 7 informing other inmates that another inmate sexually abused a child may endanger that inmate’s 8 safety. However, Plaintiff provides no basis to support a finding that information -- whether true 9 or false -- that Plaintiff was a victim of sexual abuse as a child, would have the same effect and 10 11 12 the Court finds none. 2. Harassment/Threats Verbal harassment or abuse alone is not sufficient to state a claim under section 1983. 13 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Even threats do not rise to the level 14 of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Plaintiff is unable 15 to state a cognizable claim for any verbal harassment or threats to which he was subjected. 16 17 18 3. Due Process a. Procedural The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 19 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 20 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 21 (2005). Plaintiff has not alleged any facts to support a claim that he was deprived of a protected 22 interest without procedural due process. 23 24 b. Substantive “To establish a violation of substantive due process . . . , a plaintiff is ordinarily required 25 to prove that a challenged government action was clearly arbitrary and unreasonable, having no 26 substantial relation to the public health, safety, morals, or general welfare. Where a particular 27 amendment provides an explicit textual source of constitutional protection against a particular 28 sort of government behavior, that Amendment, not the more generalized notion of substantive due 7 1 process, must be the guide for analyzing a plaintiff=s claims.” Patel v. Penman, 103 F.3d 868, 2 874 (9th Cir. 1996) (citations, internal quotations, and brackets omitted), cert. denied, 520 U.S. 3 1240 (1997); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Plaintiff has not alleged 4 any facts that would support a claim that his rights under the substantive component of the Due 5 Process Clause were violated. 6 7 4. Equal Protection Plaintiff generally alleges that Officer Wickert’s actions amounted to discrimination, or 8 that he discriminated against Plaintiff. The Equal Protection Clause requires that persons who are 9 similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 10 432, 439(1985); Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 11 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 12 878, 891 (9th Cir. 2008). To state a claim, Plaintiff must show that Defendants intentionally 13 discriminated against him based on his membership in a protected class. Hartmann, 707 F.3d at 14 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); 15 Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005); Lee v. City of Los 16 Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 17 If the action in question does not involve a suspect classification, a plaintiff may establish 18 an equal protection claim by showing that similarly situated individuals were intentionally treated 19 differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon 20 Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 21 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch 22 Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 23 F.3d 478, 486 (9th Cir. 2008), see also Squaw Valley Development Co. v. Goldberg, 375 F.3d 24 936, 944 (9th Cir.2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th 25 Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1) 26 plaintiff is a member of an identifiable class; (2) plaintiff was intentionally treated differently 27 from others similarly situated; and (3) there is no rational basis for the difference in treatment. 28 Village of Willowbrook, 528 U.S. at 564. Further, to establish a violation of the Equal Protection 8 1 Clause, the prisoner must present evidence of discriminatory intent. See Washington v. Davis, 2 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82; Freeman v. Arpio, 125 F.3d 732, 3 737 (9th Cir. 1997). 4 Plaintiff does not state a cognizable Equal Protection claim. Plaintiff fails to state any 5 allegations to show his membership in a protected class, that he was intentionally treated 6 differently from others similarly situated, or any discriminatory intent by Officer Wickert. 7 5. Privacy Plaintiff contends that his rights under HIPPA and “the Privacy Act” were violated when 8 9 Officer Wickert accessed and disseminated his mental health records. HIPAA provides no 10 private right of action; as such, Plaintiff’s HIPAA claim fails as a matter of law. Seaton v. 11 Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (citing Webb v. Smart Document Solutions, LLC, 499 12 F3d 1078, 1081 (9th Cir. 2007)). Although not expressly pled, to the extent Plaintiff’s claim can be construed as a claim for 13 14 violation of his constitutional rights under 42 U.S.C. § 1983, the complaint is devoid of any 15 support for a claim that Officer Wickert violated Plaintiff’s right to informational privacy under 16 the Due Process Clause of the Fourteenth Amendment. Seaton, 610 F.3d at 537-41. Assuming 17 the existence of a right in avoiding unauthorized disclosure of medical information, Seaton, 610 18 F.3d at 537-41; see also NASA Aeronautics and Space Admin. v. Nelson, __ U.S. __, __, 131 19 S.Ct. 746, 751 (2011) (assuming without deciding that the Constitution protects a right of 20 privacy), Plaintiff’s allegations that Officer Wickert copied and distributed his mental health 21 records to every inmate and staff member at SATF is not facially plausible. Iqbal, 556 U.S. at 22 678. 23 6. Under the Government Claims Act (“GCA”),1 set forth in California Government Code 24 25 California Government Claims Act sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public 26 27 28 1 The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act). 9 1 employee or entity unless the plaintiff first presented the claim to the California Victim 2 Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on 3 the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil 4 complaint for money or damages first be presented to and rejected by the pertinent public entity.” 5 Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this 6 requirement is “to provide the public entity sufficient information to enable it to adequately 7 investigate claims and to settle them, if appropriate, without the expense of litigation.” City of 8 San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) 9 (citations omitted). Compliance with this “claim presentation requirement” constitutes an 10 element of a cause of action for damages against a public entity or official. State v. Superior 11 Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state 12 courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation 13 requirement subjects a claim against a public entity to a demurrer for failure to state a cause of 14 action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted). 15 Federal courts likewise must require compliance with the GCA for pendant state law 16 claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 17 702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 18 (9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, 19 may proceed only if the claims were first presented to the state in compliance with the claim 20 presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 21 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). 22 23 24 25 Plaintiff fails to state any allegations to establish that he complied with the GCA so as to be permitted to pursue claims of defamation, slander, and libel under California law in this action. 7. Federal Tort Claims Act The Federal Tort Claims Act (“FTCA”) provides federal tort liability based on actions of 26 officers or employees of any federal agency. 28 U.S.C. § 2671, et seq. Like the CGCA, 27 administrative exhaustion is a required element of a claim under the FTCA. See Gillespie v. 28 Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (“The timely filing of an administrative claim is a 10 1 jurisdictional prerequisite to the bringing of a suit under the FTCA, and, as such, should be 2 affirmatively alleged in the complaint.” (internal citation omitted)). This is a jurisdictional 3 prerequisite to pursuing a tort claim against federal employees in a district court. See Brady v. 4 United States, 211 F.3d 499, 502 (9th Cir. 2000), cert. denied, 531 U.S. 1037, 121 S.Ct. 627 5 (2000) (stating that a claimant under the Federal Tort Claims Act must comply with 28 U.S.C. § 6 2675(a) before a district court can exert jurisdiction over the claim). “Because the requirement is 7 jurisdictional, it ‘must be strictly adhered to. This is particularly so since the FTCA waives 8 sovereign immunity. Any such waiver must be strictly construed in favor of the United States.’” 9 Brady, 211 F.3d at 502, quoting Jerves v. United States, 966 F.2d 517, 521 (9th Cir.1992). 10 Plaintiff has not named any federal government employees as defendants in this action to 11 proceed on any claims under the FTCA. Further, even if Plaintiff had named federal defendants, 12 he fails to state any allegations showing compliance with the FTCA to proceed on federal tort 13 claims in this action. 14 15 ORDER For the reasons set forth above, Plaintiff's First Amended Complaint is dismissed with 16 leave to file a second amended complaint within thirty (30) days. If Plaintiff needs an extension 17 of time to comply with this order, Plaintiff shall file a motion seeking an extension of time no 18 later than thirty (30) days from the date of service of this order. 19 Plaintiff must demonstrate in any second amended complaint how the conditions 20 complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. 21 Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific 22 terms how each named defendant is involved. There can be no liability under section 1983 unless 23 there is some affirmative link or connection between a defendant's actions and the claimed 24 deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 25 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 26 Plaintiff's second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short 27 and plain statement must “give the defendant fair notice of what the . . . claim is and the grounds 28 upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 11 1 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 2 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 3 (2007) (citations omitted). 4 Plaintiff is cautioned that an amended complaint supercedes the original, Lacey v. 5 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 6 2012) (en banc), and must be “complete in itself without reference to the prior or superceded 7 pleading,” Local Rule 220. 8 The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 9 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 10 may not change the nature of this suit by adding new, unrelated claims in his second amended 11 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 12 Based on the foregoing, it is HEREBY ORDERED that: 13 1. Plaintiff's First Amended Complaint is dismissed, with leave to amend; 14 2. The Clerk's Office shall send Plaintiff a civil rights complaint form; 15 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 16 second amended complaint curing the deficiencies identified by the Court in this 17 order or a notice of voluntary dismissal; and 18 4. 19 If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order and for failure to state a cognizable claim. 20 21 22 23 IT IS SO ORDERED. Dated: May 19, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 12 .

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?