Martinez v. Davey
Filing
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ORDER Discharging Order to Show Cause and GRANTING Leave to Amend 13 , signed by Magistrate Judge Barbara A. McAuliffe on 6/16/17: 30-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICARDO MARTINEZ,
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Plaintiff,
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v.
D. DAVEY,
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Case No. 1:16-cv-01655-BAM (PC)
ORDER DISCHARGING ORDER TO SHOW
CAUSE AND GRANTING LEAVE TO
AMEND
(ECF No. 13)
Defendant.
THIRTY (30) DAY DEADLINE
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Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this action under 42 U.S.C. § 1983. Plaintiff initiated this action on June 17, 2016, in
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the Northern District of California. (ECF No. 1.) On October 27, 2016, the case was transferred
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to this district. (ECF No. 6.) On June 6, 2017, the Court issued an order to show cause why this
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action should not be dismissed as duplicative of Martinez v. Davey, et al., No. 1:16-cv-00084-
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LJO-BAM (“Martinez I”), filed on January 20, 2016. Plaintiff filed the instant response on June
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14, 2017. (ECF No. 14.)
In his response, Plaintiff states that on October 16, 2016, he submitted two envelopes by
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prison mail, each containing an amended complaint. Plaintiff states that one amended complaint
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was filed on December 1, 2016, in Martinez v. Davey, No. 1:16-cv-1658-MJS (“Martinez II”).1
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The Court takes judicial notice of the files in Martinez v. Davey, et al., No. 1:16-cv-00084-LJO-BAM (“Martinez I”) and
Martinez v. Davey, No. 1:16-cv-1658-MJS (“Martinez II”). Fed. R. Evid. 201.
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Plaintiff believes that the second of his amended complaints was not filed, because that one was
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regarding the denial of an “Oslen review” only. Plaintiff attaches copies of 602 third level
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responses from May 26, 2016. (ECF No. 14.)
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The Court notes that the first amended complaint in Martinez II was not filed until March
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9, 2017. (Martinez II, First Am. Compl., Docket No. 17.) However, a first amended complaint,
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signed by Plaintiff on November 22, 2016, was filed in Martinez I on December 1, 2016.
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(Martinez I, First Am. Compl., Docket No. 37, p. 12.) Plaintiff is correct that a first amended
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complaint was never filed in the instant case.
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As Plaintiff notes he previously attempted to file a first amended complaint, the Court will
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discharge the order to show cause and construe Plaintiff’s response as a motion to amend the
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complaint. Plaintiff is advised that an amended complaint remains subject to the standards for
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duplicative lawsuits, and may not involve the same claims against the same defendants as his
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other pending actions. Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007),
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(“Plaintiffs generally have no right to maintain two separate actions involving the same subject
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matter at the same time in the same court and against the same defendant.”), overruled on other
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grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). Plaintiff also may not change the nature
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of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507
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F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what
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each defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The inquiry into causation must be individualized
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and focus on the duties and responsibilities of each individual defendant whose acts or omissions
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are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th
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Cir. 1988). 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. . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555 (2007) (citations omitted).
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Plaintiff is reminded that, as stated in the Court’s first informational order, the Court will
not serve as a repository for evidence, and he need not attach exhibits to his complaint to prove
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the truth of what is said in the complaint. For Court screening purposes, facts stated in
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complaints are accepted as true. (ECF No. 8, p. 3.) If Plaintiff feels compelled to submit exhibits
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with his amended complaint, he is reminded that such exhibits must be attached to the complaint
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and must be incorporated by reference. Fed. R. Civ. P. 10(c).
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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.
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Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended
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complaint must be “complete in itself without reference to the prior or superseded pleading.”
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Local Rule 220.
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Based on the foregoing, it is HEREBY ORDERED that:
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1. The order to show cause issued on June 6, 2017, is discharged;
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2. The Clerk’s Office shall send to Plaintiff a civil rights complaint form;
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3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a first
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amended complaint or a notice of voluntary dismissal; and
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4. If Plaintiff fails to file an amended complaint in compliance with this order, the
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Court will dismiss this action, with prejudice, for failure to state a claim and to
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obey a court order.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
June 16, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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