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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CHANCELLOR WADE, 10 11 Plaintiff, Case No. 1:16-cv-01840-DAD-SKO (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (Doc. 1) 12 CA DEPT OF CORRECTIONS & REHABILITATION, et al., TWENTY-ONE (21) DAY DEADLINE 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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 28 1 1 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 2 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 4 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 5 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 6 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 7 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 8 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 9 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 10 11 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 12 when a pleading says too little -- the baseline threshold of factual and legal allegations required 13 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 14 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 15 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 16 have never held -- and we know of no authority supporting the proposition -- that a pleading may 17 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 18 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 19 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 20 impose unfair burdens on litigants and judges”). 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 22 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 23 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 24 “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 25 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 26 legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 27 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 28 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 2 1 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 2 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 3 However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,” 4 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 5 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 6 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 7 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 8 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 9 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 10 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 11 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 12 13 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 14 when the opportunity to correct the pleadings has been afforded and there has been no 15 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 16 2013). 17 If he chooses to file a first amended complaint, Plaintiff should make it as concise as 18 possible by simply stating which of his constitutional rights he believes were violated by each 19 defendant and the factual basis for each claim. Plaintiff need not cite legal authority for his 20 claims in a second amended complaint as his factual allegations are accepted as true. The 21 amended complaint should be clearly legible (see Local Rule 130(b)), and double-spaced 22 pursuant to Local Rule 130(c). 23 2. 24 Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 25 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 26 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 27 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 28 substantive rights, but merely provides a method for vindicating federal rights elsewhere 3 1 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 2 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 3 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 4 or causal connection, between each defendant’s actions or omissions and a violation of his federal 5 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 6 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 7 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 8 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 9 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 10 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 11 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 12 F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 13 liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. 14 DISCUSSION Plaintiff’s Allegations 15 A. 16 Although Plaintiff is no longer incarcerated, he seeks money damages based on 17 circumstances that allegedly occurred at the North Kern State Prison (“NKSP”) in Delano, 18 California. Plaintiff names the California Department of Corrections and Rehabilitation 19 (“CDCR”); Correctional Plant Manager II, Carol A. Swearingen; Chief Engineer I, Neil Erling; 20 and Does 1-100 as Defendants in this action. 21 Plaintiff alleges that he was housed at NKSP from September of 2012 through December 22 of 2015. In October of 2014, the furnace that heats the five housing units in Facility A, where 23 Plaintiff was housed, became and remained inoperable through the first week of January in 2015. 24 The onset of cold weather began in November of 2014. Many days and nights were below 25 freezing in December of 2014. The cells had cement floors, walls, and ceilings. Moisture 26 accumulated and ran down the walls to the floor, where it occasionally formed a thin layer of ice. 27 Plaintiff states that it was so cold in his cell that he could see his breath when he exhaled. 28 Plaintiff wore socks on his hands and 3-4 pairs on his feet, but this was insufficient -- his fingers 4 1 and toes were in constant pain and sometimes went numb from the cold. Although each inmate 2 was given an extra blanket, it was not sufficient to protect them from the cold that permeated the 3 housing units. As a result of the cold temperatures, Plaintiff went into respiratory failure. 4 Eventually, he was diagnosed with bronchitis or asthma and was put on steroids and inhalers, 5 occasionally needing a breathing machine to relieve his symptoms. 6 Plaintiff alleges that Carol Swearingen was the Correctional Plant Manger II, that Neil 7 Erling was the Chief Engineer I, Does 1-100 worked under their supervision, and that they were 8 all employees of the CDCR. Plaintiff asserts claims under the Eighth Amendment for the 9 conditions of confinement, for supervisorial liability, and for negligence. 10 Plaintiff not only fails to state any cognizable claims, he also fails to link Swearingin, 11 Erling, and Does 1-100 to any of his factual allegations. However, Plaintiff is provided the 12 applicable legal standards for his stated claims and leave to file a first amended complaint. 13 14 15 B. Legal Standards 1. Eleventh Amendment Immunity Plaintiff may not sustain an action against the California Department of Corrections and 16 Rehabilitation. The Eleventh Amendment prohibits federal courts from hearing suits brought 17 against an un-consenting state. Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 18 (9th Cir. 1991); see also Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto 19 Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State 20 Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The Eleventh Amendment bars suits against 21 state agencies as well as those where the state itself is named as a defendant. See Natural 22 Resources Defense Council v. California Dep’t of Tranp., 96 F.3d 420, 421 (9th Cir. 1996); 23 Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); Taylor v. List, 24 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state 25 agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community College 26 Dist., 861 F.2d 198, 201 (9th Cir. 1989). “Though its language might suggest otherwise, the 27 Eleventh Amendment has long been construed to extend to suits brought against a state by its 28 own citizens, as well as by citizens of other states.” Brooks, 951 F.2d at 1053 (citations omitted). 5 1 “The Eleventh Amendment’s jurisdictional bar covers suits naming state agencies and 2 departments as defendants, and applies whether the relief is legal or equitable in nature.” Id. 3 (citation omitted). Because the California Department of Corrections and Rehabilitation is a 4 state agency, it is immune to Plaintiff’s claims under the Eleventh Amendment. 2. 5 Eighth Amendment -- Conditions of Confinement The Eighth Amendment protects prisoners from inhumane methods of punishment and 6 7 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 8 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 9 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 10 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 11 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 12 Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .” 13 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. 14 County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). The deliberate indifference standard involves both an objective and a subjective prong. 15 16 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 17 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 18 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 19 20 sufficiently serious to meet the objective prong. Plaintiff’s allegations, however, fail to meet the 21 subjective prong. Specifically, Plaintiff fails to link Swearingen, Erling, or Does 1-100 to his 22 factual allegations and fails to show that they knew inmates were being exposed to extreme cold 23 before Plaintiff raised it in an inmate appeal. Further, the rulings on Plaintiff’s inmate appeal 24 reveal that no work requests were submitted by Facility A Building personnel prior to Plaintiff’s 25 inmate appeal, which is dated January 5, 2015. However, once brought to light, a troubleshooting 26 process was initiated which revealed that “all 15 outdoor duct furnaces had failures and/or 27 cracks.” (Doc. 5, p. 10.)1 Replacement parts were obtained, installed, and all furnace units were 28 1 Plaintiff’s exhibits are considered as he submitted them only a week after he filed this action and explained that his 6 1 fully operational by January 9, 2015. (Id.) A four day turn-around from receipt of Plaintiff’s 2 inmate appeal to correction of the problem does not establish deliberate indifference to the 3 situation. Further, Plaintiff’s request for temporary space heaters in each cell was considered but 4 denied as it would have overloaded the electrical system and resulted in “catastrophic electrical 5 failures of equipment, panels, lighting, TV’s, radios, etc.” (Id.) Plaintiff does not state a 6 cognizable claim as he fails to show that Swearingin, Erling, or Does 1-100 knew of, and 7 deliberately disregarded, an excessive risk to his safety. 8 9 3. Supervisory Liability It is clear that Plaintiff named Swearingin and Erling as defendants based on their 10 supervisory positions and he specifically alleges that they failed to train and supervise their 11 subordinates on the need to perform routine maintenance, inspection, and reporting of issues with 12 the heating furnaces. (Doc. 1, p. 10.) 13 Generally, supervisory personnel are not liable under section 1983 for the actions of their 14 employees under a theory of respondeat superior, Iqbal, 129 S.Ct. at 1949. When a named 15 defendant holds a supervisory position, the causal link between him and the claimed 16 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th 17 Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 18 (1979). To show this, “a plaintiff must show the supervisor breached a duty to plaintiff which 19 was the proximate cause of the injury. The law clearly allows actions against supervisors under 20 section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived 21 under color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435, 22 1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by Farmer v. 23 Brennan, 511 U.S. 825 (1994). 24 To state a claim for relief under this theory, Plaintiff must allege some facts that would 25 support a claim that supervisory defendants either personally participated in the alleged 26 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or 27 promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of 28 failure to attach them to the Complaint was inadvertent. (Doc. 5.) 7 1 constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 2 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 3 (9th Cir. 1989). 4 “The requisite causal connection can be established . . . by setting in motion a series of 5 acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly 6 refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably 7 should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty. 8 of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001). “A supervisor can be liable in his individual 9 capacity for his own culpable action or inaction in the training, supervision, or control of his 10 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 11 reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 12 1087, 1093 (9th Cir. 1998) (internal alteration and quotation marks omitted). 13 Although federal pleading standards are broad, some facts must be alleged to support 14 claims under section 1983. See Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 168 15 (1993). General statements that a supervisor failed to train or supervise their subordinates are 16 legal conclusions that need not be accepted as true. Iqbal, 556 U.S. at 678. Thus, Plaintiff’s 17 conclusory allegations that Swearingin and Erling failed to train and supervise their subordinates 18 on the need to perform routine maintenance, inspection, and reporting of issues with the heating 19 furnaces are insufficient to state a cognizable claim. 20 Plaintiff’s allegations can also be construed to allege that by reviewing Plaintiff's IAs on 21 this issue, Swearingin knew that Plaintiff was being exposed to cold temperatures and was 22 deliberately indifferent. However, “inmates lack a separate constitutional entitlement to a 23 specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no 24 liberty interest in processing of appeals because no entitlement to a specific grievance procedure), 25 citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a 26 procedural right only, it does not confer any substantive right upon the inmates.” Azeez v. 27 DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th 28 Cir. 1993); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance 8 1 procedure confers no liberty interest on prisoner). Conversely, a plaintiff may “state a claim against a supervisor for deliberate indifference 2 3 based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or 4 her subordinates,” Starr v. Baca, 652 F.3d 1202, 1207 (2011), which may be shown via the 5 inmate appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and 6 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 7 8 requests were submitted by Facility A Building personnel. (Doc. 5, p. 10.) Once Plaintiff’s 9 inmate appeal -- which he did not file until January 5, 2015 -- brought the issue to light, a 10 troubleshooting process was initiated which revealed the source of the furnace problem. (Id.) 11 Replacement parts were ordered, installed, and all furnace units were fully operational by January 12 9, 2015. (Id.) Plaintiff’s request for temporary space heaters in each cell was considered but 13 denied as it would have overloaded the electrical system and resulted in “catastrophic electrical 14 failures of equipment, panels, lighting, TV’s, radios, etc.” (Id.) Plaintiff does not state a 15 cognizable claim as he fails to show that either Swearingin, Erling, or Does 1-100 knew of, and 16 intentionally disregarded, an excessive risk to his safety. 4. 17 California’s Government Claims Act Under the Government Claims Act (“GCA”),2 set forth in California Government Code 18 19 sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public 20 employee or entity unless the plaintiff first presented the claim to the California Victim 21 Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on 22 the claim, or the time for doing so has expired. “The Tort Claims Act requires that any civil 23 complaint for money or damages first be presented to and rejected by the pertinent public entity.” 24 Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this 25 requirement is “to provide the public entity sufficient information to enable it to adequately 26 investigate claims and to settle them, if appropriate, without the expense of litigation.” City of 27 2 28 The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act). 9 1 San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) 2 (citations omitted). Compliance with this “claim presentation requirement” constitutes an 3 element of a cause of action for damages against a public entity or official. State v. Superior 4 Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). In state courts, 5 “failure to allege facts demonstrating or excusing compliance with the claim presentation 6 requirement subjects a claim against a public entity to a demurrer for failure to state a cause of 7 action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted). 8 9 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 10 702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 11 (9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, 12 may proceed only if the claims were first presented to the state in compliance with the claim 13 presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 14 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). 15 Plaintiff fails to state any allegations which show he complied with the GCA, but he 16 submitted the letter of rejection that the Board issued on August 28, 2015, which implies he 17 timely complied. (Doc. 5, p. 16.) However, pursuant to 28 U.S.C. ' 1367(a), in any civil action 18 in which the district court has original jurisdiction, the district court “shall have supplemental 19 jurisdiction over all other claims in the action within such original jurisdiction that they form part 20 of the same case or controversy under Article III,” except as provided in subsections (b) and (c). 21 “[O]nce judicial power exists under ' 1367(a), retention of supplemental jurisdiction over state 22 law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th 23 Cir. 1997). “The district court may decline to exercise supplemental jurisdiction over a claim 24 under subsection (a) if . . . the district court has dismissed all claims over which it has original 25 jurisdiction.” 28 U.S.C. ' 1367(c)(3); Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 26 (9th Cir. 2013); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 27 2001); see also Watison v. Carter, 668 F.3d 1108, 1117-18 (9th Cir. 2012) (even in the presence 28 of cognizable federal claim, district court has discretion to decline supplemental jurisdiction 10 1 over novel or complex issue of state law of whether criminal statutes give rise to civil liability). 2 The Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . . the 3 state claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 4 715, 726 (1966). Jurisdiction over Plaintiff’s claims under California law will only be exercised 5 by this Court if Plaintiff states a cognizable federal claim. 6 7 ORDER For the reasons set forth above, Plaintiff’s Complaint is dismissed with leave to file a first 8 amended complaint within twenty-one (21) days. If Plaintiff needs an extension of time to 9 comply with this order, Plaintiff shall file a motion seeking an extension of time no later than 10 twenty-one (21) days from the date of service of this order. 11 Plaintiff must demonstrate in any first amended complaint how the conditions of which he 12 complains resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 13 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 14 defendant is involved. There can be no liability under section 1983 unless there is some 15 affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo 16 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 17 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Plaintiff’s first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 19 plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon 20 which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 21 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 22 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 23 (2007) (citations omitted). Plaintiff is further reminded that an amended complaint supercedes 24 the original, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 25 (9th Cir. Aug. 29, 2012) (en banc), and must be “complete in itself without reference to the prior 26 or superceded pleading,” Local Rule 220. 27 28 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 11 1 may not change the nature of this suit by adding new, unrelated claims in his first amended 2 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. Plaintiff’s Complaint is dismissed, with leave to amend; 5 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 6 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must 7 file a first amended complaint curing the deficiencies identified by the Court in 8 this order or a notice of voluntary dismissal; and 4. 9 If Plaintiff fails to comply with this order, the court will recommend that this 10 action be dismissed for failure to obey a court order and for failure to state a 11 cognizable claim. 12 13 14 15 IT IS SO ORDERED. Dated: June 28, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12 .

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