Wade v. California Department of Corrections and Rehabilitation et al

Filing 11

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Twenty-One (21) Days signed by Magistrate Judge Sheila K. Oberto on 6/28/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHANCELLOR WADE,

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Plaintiff,

Case No. 1:16-cv-01840-DAD-SKO (PC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
(Doc. 1)

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CA DEPT OF CORRECTIONS &
REHABILITATION, et al.,

TWENTY-ONE (21) DAY DEADLINE

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Defendants.
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INTRODUCTION
A.

Background

Plaintiff, Chancellor Wade, is a former state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. For the reasons discussed below,
Plaintiff fails to state a cognizable claim upon which relief may be granted and the Complaint is
DISMISSED with leave to file a first amended complaint.
B.

Screening Requirement and Standard

The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 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).

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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.
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,
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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 first 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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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
Plaintiff’s Allegations

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A.

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Although Plaintiff is no longer incarcerated, he seeks money damages based on

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circumstances that allegedly occurred at the North Kern State Prison (“NKSP”) in Delano,

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California. Plaintiff names the California Department of Corrections and Rehabilitation

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(“CDCR”); Correctional Plant Manager II, Carol A. Swearingen; Chief Engineer I, Neil Erling;

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and Does 1-100 as Defendants in this action.

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Plaintiff alleges that he was housed at NKSP from September of 2012 through December

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of 2015. In October of 2014, the furnace that heats the five housing units in Facility A, where

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Plaintiff was housed, became and remained inoperable through the first week of January in 2015.

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The onset of cold weather began in November of 2014. Many days and nights were below

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freezing in December of 2014. The cells had cement floors, walls, and ceilings. Moisture

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accumulated and ran down the walls to the floor, where it occasionally formed a thin layer of ice.

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Plaintiff states that it was so cold in his cell that he could see his breath when he exhaled.

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Plaintiff wore socks on his hands and 3-4 pairs on his feet, but this was insufficient -- his fingers
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and toes were in constant pain and sometimes went numb from the cold. Although each inmate

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was given an extra blanket, it was not sufficient to protect them from the cold that permeated the

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housing units. As a result of the cold temperatures, Plaintiff went into respiratory failure.

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Eventually, he was diagnosed with bronchitis or asthma and was put on steroids and inhalers,

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occasionally needing a breathing machine to relieve his symptoms.

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Plaintiff alleges that Carol Swearingen was the Correctional Plant Manger II, that Neil

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Erling was the Chief Engineer I, Does 1-100 worked under their supervision, and that they were

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all employees of the CDCR. Plaintiff asserts claims under the Eighth Amendment for the

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conditions of confinement, for supervisorial liability, and for negligence.

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Plaintiff not only fails to state any cognizable claims, he also fails to link Swearingin,

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Erling, and Does 1-100 to any of his factual allegations. However, Plaintiff is provided the

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applicable legal standards for his stated claims and leave to file a first amended complaint.

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B.

Legal Standards
1.

Eleventh Amendment Immunity

Plaintiff may not sustain an action against the California Department of Corrections and

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Rehabilitation. The Eleventh Amendment prohibits federal courts from hearing suits brought

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against an un-consenting state. Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053

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(9th Cir. 1991); see also Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto

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Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State

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Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The Eleventh Amendment bars suits against

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state agencies as well as those where the state itself is named as a defendant. See Natural

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Resources Defense Council v. California Dep’t of Tranp., 96 F.3d 420, 421 (9th Cir. 1996);

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Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state

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agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community College

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Dist., 861 F.2d 198, 201 (9th Cir. 1989). “Though its language might suggest otherwise, the

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Eleventh Amendment has long been construed to extend to suits brought against a state by its

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own citizens, as well as by citizens of other states.” Brooks, 951 F.2d at 1053 (citations omitted).
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“The Eleventh Amendment’s jurisdictional bar covers suits naming state agencies and

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departments as defendants, and applies whether the relief is legal or equitable in nature.” Id.

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(citation omitted). Because the California Department of Corrections and Rehabilitation is a

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state agency, it is immune to Plaintiff’s claims under the Eleventh Amendment.
2.

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Eighth Amendment -- Conditions of Confinement

The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.

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Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison

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officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000) (quotation marks and citations omitted). To establish a violation of the Eighth

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Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .”

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Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v.

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County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).
The deliberate indifference standard involves both an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834.

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Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate

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health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).
For screening purposes, the extreme cold Plaintiff was forced to endure at NKSP is

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sufficiently serious to meet the objective prong. Plaintiff’s allegations, however, fail to meet the

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subjective prong. Specifically, Plaintiff fails to link Swearingen, Erling, or Does 1-100 to his

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factual allegations and fails to show that they knew inmates were being exposed to extreme cold

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before Plaintiff raised it in an inmate appeal. Further, the rulings on Plaintiff’s inmate appeal

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reveal that no work requests were submitted by Facility A Building personnel prior to Plaintiff’s

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inmate appeal, which is dated January 5, 2015. However, once brought to light, a troubleshooting

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process was initiated which revealed that “all 15 outdoor duct furnaces had failures and/or

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cracks.” (Doc. 5, p. 10.)1 Replacement parts were obtained, installed, and all furnace units were

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Plaintiff’s exhibits are considered as he submitted them only a week after he filed this action and explained that his

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fully operational by January 9, 2015. (Id.) A four day turn-around from receipt of Plaintiff’s

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inmate appeal to correction of the problem does not establish deliberate indifference to the

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situation. Further, Plaintiff’s request for temporary space heaters in each cell was considered but

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denied as it would have overloaded the electrical system and resulted in “catastrophic electrical

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failures of equipment, panels, lighting, TV’s, radios, etc.” (Id.) Plaintiff does not state a

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cognizable claim as he fails to show that Swearingin, Erling, or Does 1-100 knew of, and

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deliberately disregarded, an excessive risk to his safety.

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3.

Supervisory Liability

It is clear that Plaintiff named Swearingin and Erling as defendants based on their

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supervisory positions and he specifically alleges that they failed to train and supervise their

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subordinates on the need to perform routine maintenance, inspection, and reporting of issues with

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the heating furnaces. (Doc. 1, p. 10.)

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Generally, supervisory personnel are not liable under section 1983 for the actions of their

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employees under a theory of respondeat superior, Iqbal, 129 S.Ct. at 1949. When a named

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defendant holds a supervisory position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th

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Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941

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(1979). To show this, “a plaintiff must show the supervisor breached a duty to plaintiff which

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was the proximate cause of the injury. The law clearly allows actions against supervisors under

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section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived

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under color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435,

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1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by Farmer v.

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Brennan, 511 U.S. 825 (1994).

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To state a claim for relief under this theory, Plaintiff must allege some facts that would

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support a claim that supervisory defendants either personally participated in the alleged

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deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or

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promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of

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failure to attach them to the Complaint was inadvertent. (Doc. 5.)

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constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989).

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“The requisite causal connection can be established . . . by setting in motion a series of

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acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly

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refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably

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should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty.

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of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001). “A supervisor can be liable in his individual

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capacity for his own culpable action or inaction in the training, supervision, or control of his

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subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a

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reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d

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1087, 1093 (9th Cir. 1998) (internal alteration and quotation marks omitted).

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Although federal pleading standards are broad, some facts must be alleged to support

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claims under section 1983. See Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 168

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(1993). General statements that a supervisor failed to train or supervise their subordinates are

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legal conclusions that need not be accepted as true. Iqbal, 556 U.S. at 678. Thus, Plaintiff’s

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conclusory allegations that Swearingin and Erling failed to train and supervise their subordinates

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on the need to perform routine maintenance, inspection, and reporting of issues with the heating

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furnaces are insufficient to state a cognizable claim.

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Plaintiff’s allegations can also be construed to allege that by reviewing Plaintiff's IAs on

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this issue, Swearingin knew that Plaintiff was being exposed to cold temperatures and was

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deliberately indifferent. However, “inmates lack a separate constitutional entitlement to a

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specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no

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liberty interest in processing of appeals because no entitlement to a specific grievance procedure),

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citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a

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procedural right only, it does not confer any substantive right upon the inmates.” Azeez v.

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DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th

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Cir. 1993); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance
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procedure confers no liberty interest on prisoner).
Conversely, a plaintiff may “state a claim against a supervisor for deliberate indifference

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based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or

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her subordinates,” Starr v. Baca, 652 F.3d 1202, 1207 (2011), which may be shown via the

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inmate appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and

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failed to take corrective action, thereby allowing the violation to continue.
However, as discussed above, the rulings on Plaintiff’s inmate appeal show that no work

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requests were submitted by Facility A Building personnel. (Doc. 5, p. 10.) Once Plaintiff’s

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inmate appeal -- which he did not file until January 5, 2015 -- brought the issue to light, a

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troubleshooting process was initiated which revealed the source of the furnace problem. (Id.)

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Replacement parts were ordered, installed, and all furnace units were fully operational by January

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9, 2015. (Id.) Plaintiff’s request for temporary space heaters in each cell was considered but

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denied as it would have overloaded the electrical system and resulted in “catastrophic electrical

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failures of equipment, panels, lighting, TV’s, radios, etc.” (Id.) Plaintiff does not state a

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cognizable claim as he fails to show that either Swearingin, Erling, or Does 1-100 knew of, and

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intentionally disregarded, an excessive risk to his safety.
4.

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California’s Government Claims Act

Under the Government Claims Act (“GCA”),2 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 has 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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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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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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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). In state courts,

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“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).

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Federal courts likewise must require compliance with the GCA for pendant state law
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).

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Plaintiff fails to state any allegations which show he complied with the GCA, but he

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submitted the letter of rejection that the Board issued on August 28, 2015, which implies he

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timely complied. (Doc. 5, p. 16.) However, pursuant to 28 U.S.C. ' 1367(a), in any civil action

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in which the district court has original jurisdiction, the district court “shall have supplemental

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jurisdiction over all other claims in the action within such original jurisdiction that they form part

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of the same case or controversy under Article III,” except as provided in subsections (b) and (c).

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“[O]nce judicial power exists under ' 1367(a), retention of supplemental jurisdiction over state

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law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th

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Cir. 1997). “The district court may decline to exercise supplemental jurisdiction over a claim

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under subsection (a) if . . . the district court has dismissed all claims over which it has original

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jurisdiction.” 28 U.S.C. ' 1367(c)(3); Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156

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(9th Cir. 2013); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir.

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2001); see also Watison v. Carter, 668 F.3d 1108, 1117-18 (9th Cir. 2012) (even in the presence

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of cognizable federal claim, district court has discretion to decline supplemental jurisdiction
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over novel or complex issue of state law of whether criminal statutes give rise to civil liability).

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The Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . . the

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state claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S.

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715, 726 (1966). Jurisdiction over Plaintiff’s claims under California law will only be exercised

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by this Court if Plaintiff states a cognizable federal claim.

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ORDER
For the reasons set forth above, Plaintiff’s Complaint is dismissed with leave to file a first

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amended complaint within twenty-one (21) days. If Plaintiff needs an extension of time to

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comply with this order, Plaintiff shall file a motion seeking an extension of time no later than

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twenty-one (21) days from the date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions of which he

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complains resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227

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(9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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

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

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

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

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

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

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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). Plaintiff is further reminded that an amended complaint supercedes

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the original, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1

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(9th Cir. Aug. 29, 2012) (en banc), and must be “complete in itself without reference to the prior

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or superceded pleading,” Local Rule 220.

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The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified
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 first 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 Complaint is dismissed, with leave to amend;

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2.

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 first 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, the court will recommend that this

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

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cognizable claim.

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IT IS SO ORDERED.
Dated:

June 28, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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.