Leslie v. Madrigal et al

Filing 12

ORDER DISMISSING First Amended Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 6/15/17. Amended Complaint Due Within Twenty One Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DESHAWN D. LESLIE,

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Case No. 1:16-cv-01698-SKO (PC)

Plaintiff,

ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.
(Doc. 1)

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MADRIGAL, et al.,
TWENTY-ONE (21) DAY DEADLINE

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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Deshawn D. Leslie, is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state

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a cognizable claim upon which relief may be granted and the Complaint is DISMISSED with

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leave to file a second amended complaint.

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B.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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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)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much.

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Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e

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have never held -- and we know of no authority supporting the proposition -- that a pleading may

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be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8,

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and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

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678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth

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“sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal,

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556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but

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legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d

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962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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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
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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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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

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).

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If he chooses to file a second amended complaint, Plaintiff should make it as concise as

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possible by simply stating which of his constitutional rights he believes were violated by each

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defendant and the factual basis for each claim. Plaintiff need not cite legal authority for his

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claims in a second amended complaint as his factual allegations are accepted as true. The

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amended complaint should be clearly legible (see Local Rule 130(b)), and double-spaced

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pursuant to Local Rule 130(c).

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2.

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Federal Rule of Civil Procedure 18(a) & 20(a)(2)

Federal Rule of Civil Procedure 18(a) allows a party asserting a claim for relief as an

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original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as

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alternate claims, numerous claims against an opposing party. However, Plaintiff may not bring

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unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);

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Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the claims arise
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out of the same transaction or occurrence, or series of transactions and occurrences, and (2) there

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are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d

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1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.3d

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1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) will the

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Court review the additional claims to determine if they may be joined under Rule 18(a), which

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permits the joinder of multiple claims against the same party.

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The Court must be able to discern a relationship between Plaintiff’s claims or there must

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be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of

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constitutional violation (i.e. retaliation by different actors on different dates, under different

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factual events) does not necessarily make claims related for purposes of Rule 18(a). All claims

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that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is cautioned

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that if he fails to elect which category of claims to pursue and his amended complaint sets forth

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improperly joined claims, the Court will determine which claims should proceed and which

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claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir. 2013).

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Whether any claims will be subject to severance by future order will depend on the viability of

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claims pled in the amended complaint.

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3.

Linkage and Causation

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,

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or causal connection, between each defendant’s actions or omissions and a violation of his federal

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rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);

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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
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Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility

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of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572

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F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342.

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DISCUSSION

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A.

Plaintiff’s Allegations

Plaintiff is currently incarcerated at California Correctional Institution (“CCI”) in

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Tehachapi, California. Plaintiff names Correctional Officers Oscar M. Madrigal and Darren

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Brown as Defendants and seeks monetary damages.

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Plaintiff’s Complaint is styled as a criminal complaint and he seeks to have C/O Madrigal

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and C/O Brown criminally charged with numerous violations of his rights. The Court can find no

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basis to support Plaintiff’s desire to pursue criminal charges and to prosecute the correctional

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officers. Plaintiff may instead pursue an action under 42 U.S.C. § 1983 for violation of his

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constitutional or other federal rights by persons acting under color of state law. Nurre, 580 F.3d

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at 1092; Long, 442 F.3d at 1185; Jones, 297 F.3d at 934.

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Although the First Amended Complaint contains very sparse factual allegations, Plaintiff

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uses a few words which indicate that he believes Defendants violated some of his civil rights.

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Thus, Plaintiff is provided the pleading requirements and the applicable legal standards for those

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claims so he may file a second amended complaint, if he elects to do so.

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B.

Legal Standards
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Cruel & Unusual Punishment

“The treatment a prisoner receives in prison and the conditions under which he is confined

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are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832

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(1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have a duty “to take

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reasonable measures to guarantee the safety of inmates, which has been interpreted to include a
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duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th

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Cir. 2013) (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.

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2005)).

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To establish a violation of this duty, the prisoner must “show that the officials acted with

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deliberate indifference to threat of serious harm or injury to an inmate.” Labatad, at 1160 (citing

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Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective

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and subjective components.

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First, objectively, the alleged deprivation must be “sufficiently serious” and where a

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failure to prevent harm is alleged, “the inmate must show that he is incarcerated under conditions

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posing a substantial risk of serious harm.” Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337,

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349 (1981). Second, subjectively, the prison official must “know of and disregard an excessive

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risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th

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Cir. 1995). A prison official must “be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511

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U.S. at 837. Liability may follow only if a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id. at 847.

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Further, the Supreme Court has stated that a remedy for unsafe conditions need not await

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a tragic event; rather, where a risk/injury has yet to occur, plaintiff must prove that his future

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health/safety is unreasonably endangered, “contrary to current standards of decency for anyone to

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be so exposed against his will, and that prison officials are deliberately indifferent to his plight.”

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Helling, 509 U.S. at 33-35.

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The question under the Eighth Amendment is whether prison officials, acting with

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deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to

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his future health . . . .” Farmer, at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has

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explained that “deliberate indifference entails something more than mere negligence . . . [but]

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something less than acts or omissions for the very purpose of causing harm or with the knowledge

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that harm will result.” Id., at 835. The Court defined this “deliberate indifference” standard as
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equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id.,

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at 836-37.

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Verbal harassment or abuse alone is not sufficient to state a claim under section 1983.

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Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Even threats do not rise to the level

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of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987).

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2.

Unreasonable Searches

The Supreme Court of the United States has held that “society is not prepared to recognize

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as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell,”

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and, therefore, “the Fourth Amendment proscription against unreasonable searches does not apply

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within the confines of a prison cell.” Hudson v. Palmer, 468 U.S. 517, 525-26 (1984) (emphasis

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added). Concomitantly, Plaintiff has no basis to pursue a civil rights claim because his cell was

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not left in a neat and orderly manner after it was searched by prison officials.

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3.

Equal Protection

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

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alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439(1985); Hartmann v.

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California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan,

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705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To

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state a claim, Plaintiff must show that Defendants intentionally discriminated against him based

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on his membership in a protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030;

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Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Thornton v. City of St. Helens, 425 F.3d

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1158, 1166-67 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).

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If the action in question does not involve a suspect classification, a plaintiff may establish

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an equal protection claim by showing that similarly situated individuals were intentionally treated

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differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon

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Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528

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U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch

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Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526

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F.3d 478, 486 (9th Cir. 2008), see also Squaw Valley Development Co. v. Goldberg, 375 F.3d
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936, 944 (9th Cir.2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th

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Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1)

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the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated

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differently from others similarly situated; and (3) there is no rational basis for the difference in

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treatment. Village of Willowbrook, 528 U.S. at 564. To establish a violation of the Equal

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Protection Clause, the prisoner must also present evidence of discriminatory intent. See

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Washington v. Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82; Freeman v.

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Arpio, 125 F.3d 732, 737 (9th Cir. 1997).
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Retaliation

Prisoners have a First Amendment right to file grievances against prison officials and to

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be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir.

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2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five

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elements. Id. at 1114.
First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The

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filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th

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Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);

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Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the

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defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must

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allege a causal connection between the adverse action and the protected conduct. Waitson, 668

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F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a

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person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568

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(internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling

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effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at

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1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. Fifth, the plaintiff must

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allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the

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correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985).

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It bears repeating that while Plaintiff need only allege facts sufficient to support a

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plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at

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678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart

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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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Thus, Plaintiff’s mere allegations that he engaged in protected activity, without knowledge

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resulting in animus by a Defendant, is insufficient to show that Plaintiff=s protected activity was

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the motivating factor behind a Defendant’s actions.
5.

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Conspiracy

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A claim brought for violation of section 1985(3) requires “four elements: (1) a conspiracy;

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(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the

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equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act

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in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property

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or deprived of any right or privilege of a citizen of the United States.” Sever v. Alaska Pulp

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Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A racial, or perhaps otherwise

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class-based, invidiously discriminatory animus is an indispensable element of a section 1985(3)

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claim. Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations and

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citation omitted).

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6.

State Law Claims
a.

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Government Claims Act

Under the Government Claims Act (“GCA”),1 set forth in California Government Code

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sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public

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employee or entity unless the plaintiff first presented the claim to the California Victim

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Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on

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the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil

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complaint for money or damages first be presented to and rejected by the pertinent public entity.”

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Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this

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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).

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requirement is “to provide the public entity sufficient information to enable it to adequately

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investigate claims and to settle them, if appropriate, without the expense of litigation.” City of

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San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974)

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(citations omitted). Compliance with this “claim presentation requirement” constitutes an

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element of a cause of action for damages against a public entity or official. State v. Superior

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Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state

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courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation

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requirement subjects a claim against a public entity to a demurrer for failure to state a cause of

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action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted).
Federal courts likewise must require compliance with the GCA for pendant state law

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claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d

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702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477

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(9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983,

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may proceed only if the claims were first presented to the state in compliance with the claim

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presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627

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(9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008).
Plaintiff fails to state any allegations which show he complied with the GCA so as to be

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allowed to pursue claims for violation of California law in this action. Further, although Plaintiff

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seeks to bring criminal charges against the Defendants, a private right of action under a criminal

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statute has rarely been implied. Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979). Where a

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private right of action has been implied, “‘there was at least a statutory basis for inferring that a

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civil cause of action of some sort lay in favor of someone.’” Chrysler Corp., 441 U.S. at 316

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(quoting Cort v. Ash, 422 U.S. 66, 79 (1975)). The Court finds no indication that civil

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enforcement of any kind is available on the criminal charges Plaintiff seeks to bring against the

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Defendants. Cort, 422 U.S. at 79-80; Keaukaha-Panaewa Cmty. Ass=n v. Hawaiian Homes

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Comm=n, 739 F.2d 1467, 1469-70 (9th Cir. 1984).

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//

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//
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ORDER

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For the reasons set forth above, Plaintiff’s First Amended Complaint is dismissed with

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leave to file a second amended complaint within twenty-one (21) days. If Plaintiff needs an

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extension of time to comply with this order, Plaintiff shall file a motion seeking an extension of

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time no later than twenty-one (21) days from the date of service of this order.

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Plaintiff must demonstrate in any second amended complaint how the conditions

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complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific

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terms how each named defendant is involved. There can be no liability under section 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff’s second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short

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

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

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

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

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(2007) (citations omitted).

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

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

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

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pleading,” Local Rule 220.

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

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

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

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

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s Second Amended Complaint is dismissed, with leave to amend;
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The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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3.

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

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

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this order or a notice of voluntary dismissal; and
4.

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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.

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IT IS SO ORDERED.
Dated:

June 15, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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