Carter v. Voong, et al.

Filing 7

ORDER for Plaintiff to : (1) Notify the Court that he is wiling to proceed only on the claim for Excessive Force against Defendants Longoria and Flores; (2) File a First Amended Complaint; or (3) Notify the Court that he wishes to Stand on his Compla int, subject to the Court issuing Findings and Recommendations consistaent with this order, signed by Magistrate Judge Erica P. Grosjean on 03/20/17. (Case Management Deadline: 30-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 DOMINIC CARTER, 8 9 10 11 Plaintiff, 1:17-cv-00245-EPG (PC) ORDER FOR PLAINTIFF TO: (1) NOTIFY THE COURT THAT HE IS WILLING TO PROCEED ONLY ON THE CLAIM FOR EXCESSIVE FORCE AGAINST DEFENDANTS LONGORIA AND FLORES; v. H. FLORES, et al., Defendants. 12 (2) FILE A FIRST AMENDED COMPLAINT; 13 14 OR (3) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS COMPLAINT, SUBJECT TO THE COURT ISSUING FINDINGS AND RECOMMENDATIONS CONSISTENT WITH THIS ORDER 15 16 17 18 (ECF NO. 1) 19 THIRTY DAY DEADLINE 20 21 This is a civil action filed by Dominic Carter (“Plaintiff”), a state prisoner proceeding pro 22 se. This action was initiated by the filing of a civil complaint in Kings County Superior Court on 23 November 23, 2016 (Case #16-C0379). (ECF No. 1, p. 4). On February 16, 2017, defendants 24 Flores, Godwin, Goree, Longoria, and Pacillas removed the case to federal court by filing a notice 25 of removal of action pursuant to 28 U.S.C. § 1441(a). (Id. at pgs. 1-2). Within the notice of 26 removal, these defendants requested that the Court screen Plaintiff’s complaint under 28 U.S.C. § 27 1915A. (Id. at p. 2). On February 21, 2017, defendant Brown filed a joinder to the notice of 28 removal and request for screening. (ECF No. 5). On February 23, 2017, the Court granted the 1 1 request for the Court to screen the complaint. (ECF No. 6). The complaint is now before the 2 Court for screening. 3 I. SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 6 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 8 that seek monetary relief from a defendant who is immune from such relief. 9 ' 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 10 paid, the court shall dismiss the case at any time if the court determines that the action or appeal 11 fails to state a claim upon which relief may be granted.” 28 U.S.C. ' 1915(e)(2)(B)(ii). 28 U.S.C. 12 A complaint is required to contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 14 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 17 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 18 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 19 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 20 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 21 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff’s legal 22 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 23 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 24 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 25 pro se complaints should continue to be liberally construed after Iqbal). SUMMARY OF PLAINTIFF’S COMPLAINT 26 II. 27 Plaintiff was confined at California State Prison, Corcoran (“Corcoran”) when the alleged 28 constitutional violations occurred. Plaintiff names as defendants: 1) M. Voong (Chief, Inmate 2 1 Appeal(s)); 2) R. Pimentel (Appeals Examiner); 3) S. Longoria (Correctional Officer); 4) H. 2 Flores (Correctional Officer); 5) C. Brown (Correctional Lieutenant); 6) M. Bejarno (Correctional 3 Lieutenant); 7) R. Godwin (Correctional Captain); 8) A. Pacillas (Correctional Counselor II); and 4 9) D. Goree (Correctional Counselor II). Plaintiff’s allegations follow. 5 On August 5, 2014, Plaintiff entered facility 3A’s Classroom No. 3. He approached a 6 table occupied by inmate Smith, and had a disagreement with Smith. To deescalate the situation, 7 Plaintiff walked away from Smith to another table occupied by other inmates. While at that table, 8 Plaintiff was attacked by Smith. 9 10 11 Plaintiff grabbed Smith in an attempt to stop him from assaulting Plaintiff, and Plaintiff fell to the floor. Defendants Longoria and Flores responded to the alarm. Upon seeing Defendants 12 Longoria and Flores run into the classroom, Plaintiff tried to push Smith away, so that Plaintiff 13 could prone out. However, defendant Longoria pulled out his can of Oleoresin Capsicum Pepper 14 Spray. He then emptied the whole can of Pepper Spray on Plaintiff, even though Plaintiff was not 15 fighting. 16 After defendant Longoria emptied his can of Pepper Spray, he yelled for defendant Flores 17 to spray Plaintiff (defendant Longoria stated “spray that fucking Carter!”). Defendant Flores then 18 emptied his can of Pepper Spray on Plaintiff. 19 On August 7, 2014, defendant Longoria authored a Rules Violation Report (“RVR”), 20 asserting that Plaintiff violated California Code of Regulations, Title 15, § 3005(d)(1), 21 specifically for “Fighting Resulting In The Use of Force, And SBI.” Defendant Longoria falsely 22 asserted: “On Tuesday, August 5, 2014, at approximately 0847 hours, while performing my duties 23 as 3A Yard Officer #1, I was standing in front of facility 3A Education performing clothed body 24 searches of inmates assigned to Education when the personal alarm system activated from inside 25 3A Education. I immediately yelled, ‘get down’ as I responded into the education area. I 26 approached Classroom #3 and I observed two (2) inmates fighting at the rear of the classroom. 27 The inmates were later identified as SMITH (H-83863/3AO1-119L) and CARTER (J- 28 73232/3AO5-236U). Inmates SMITH and CARTER were on the floor, repeatedly punching each 3 1 other in the face and upper torso area. I entered the classroom and I ordered inmates SMITH and 2 CARTER to get down but my orders were ignored as they continued punching each other in the 3 face. I unholstered my state issued MK9 Oleoresin Capsicum (OC) Pepper Spray canister and 4 from a distance of approximately six (6) feet, I dispersed one (1) continuous burst of pepper spray 5 at inmates SMITH and CARTER. The pepper spray made contact with inmates SMITH and 6 CARTER’s face and head, which was my intended target area. The pepper spray did not have its 7 desired effect as inmates SMITH and CARTER continued fighting. 8 utilized his Mk9 pepper spray canister and from a distance of approximately six (6) feet, 9 administered one (1) continuous burst of pepper spray at inmates SMITH and CARTER striking 10 them in the face. The pepper spray had its desired effect and caused inmate SMITH and 11 CARTER to stop fighting and assume prone positions….” Officer FLORES then 12 The RVR was reviewed by Correctional Sergeant J. Gonzales. It was then classified by 13 Correctional Lieutenant Llamas as a serious offense and Division “D,” per California Code of 14 Regulations, Title 15, § 3323(f)(10). 15 Later, defendant Brown adjudicated the RVR. Plaintiff entered a not guilty plea and 16 attested that he walked away to try to calm the situation, which was supported by Plaintiff’s 17 primary witness Education Teacher D. Huerta’s testimony. 18 Defendant Brown found Plaintiff guilty of the false charge. Among other things, 19 defendant Brown relied on the RVR, which was authored by defendant Longoria. Defendant 20 Brown failed to assess Plaintiff’s credibility, or the credibility of Huerta. Defendant Brown also 21 did not consider their testimony that defendant Brown was not impartial. 22 On June 29, 2015, Plaintiff appealed defendant Brown’s failure to consider Plaintiff and 23 Huerta’s testimony. Plaintiff asked that the findings for the RVR be dismissed and/or adjusted by 24 removing the SBI charge from the record. 25 On October 13, 2015, defendants Pimentel and Voong found sufficient evidence to 26 warrant a modification of the Second Level Review, which was conducted by defendant Pacillas. 27 They found that a due process error occurred, and ordered that the RVR be reissued/reheard. 28 They also ordered Corcoran to direct the Chief Disciplinary Officer to change the classification of 4 1 the RVR to the specific act of “Battery on An Inmate With Serious Bodily Injury (‘SBI’),” and to 2 classify it as a Division A1 Offense (they increased the offense because Plaintiff exercised his 3 appeal rights). 4 On November 4, 2015, Defendant Bejarano adjudicated the RVR. After allowing Plaintiff 5 to enter a not guilty plea, and hearing testimony from Huerta and Plaintiff, defendant Bejarano 6 changed the charge to “Fighting,” a Division “D” Offense, in violation of California Code of 7 Regulations, Title 15, § 3313(b). 8 After considering the evidence, including the RVR, the typewritten statement by Plaintiff, 9 and the testimony provided by Huerta, defendant Bejarano found Plaintiff guilty of the illegally 10 changed charge of fighting. 11 On December 15, 2015, Plaintiff filed an appeal challenging the disciplinary hearing. 12 Plaintiff’s appeal was screened out on numerous occasions. Plaintiff alleges that the complaint 13 was screened out at least once for retaliatory reasons. Eventually Plaintiff submitted a staff 14 complaint/appeal against defendants Pacillas and Goree for intentionally rejecting Plaintiff’s 15 appeal concerning the due process violations during the adjudication of the RVR, but defendants 16 Pacillas and/or Goree intentionally destroyed it. 17 One morning, while on the Facility 3A yard, Plaintiff saw defendants Pacillas and Goree, 18 and asked them why they did not process Plaintiff’s staff complaint against them. Defendant 19 Pacillas said “because we threw it away.” Then defendants Pacillas and Goree both started 20 laughing. 21 Plaintiff brings three claims: 1) Excessive force in violation of the Eighth Amendment 22 against defendants Longoria and Flores; 2) Denial of Plaintiff’s due process rights in violation of 23 the Fourteenth Amendment against defendants Brown, Bejarano, Voong, Pimentel, Pacillas, 24 Goree, and Godwin; and 3) Retaliation in violation of the First Amendment against defendants 25 Brown, Bejarano, Voong, Pimentel, Pacillas, Goree, and Godwin. EVALUATION OF PLAINTIFF’S CLAIMS 26 III. 27 The Civil Rights Act under which this action was filed provides: 28 5 1 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 5 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 6 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 7 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 8 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 9 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2 3 10 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 11 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 12 under color of state law, and (2) the defendant deprived him of rights secured by the Constitution 13 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 14 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 15 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 16 ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an act 17 which he is legally required to do that causes the deprivation of which complaint is made.’” 18 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 19 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 20 established when an official sets in motion a ‘series of acts by others which the actor knows or 21 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 22 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 23 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 24 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 25 1026 (9th Cir. 2008). 26 Under § 1983, Plaintiff must demonstrate that each named defendant personally 27 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must 28 6 1 be an actual connection or link between the actions of the defendants and the deprivation alleged 2 to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 695 3 (1978). 4 Supervisory personnel are generally not liable under section 1983 for the actions of their 5 employees under a theory of respondeat superior and, therefore, when a named defendant holds a 6 supervisory position, the causal link between him and the claimed constitutional violation must be 7 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 8 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief 9 under section 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that 10 would support a claim that the supervisory defendants either: personally participated in the 11 alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent 12 them; or promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation 13 of constitutional rights' and is ‘the moving force of the constitutional violation.’” Hansen v. 14 Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 15 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own culpable action 16 or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in the 17 constitutional deprivations of which the complaint is made,” or “conduct that showed a reckless 18 or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 19 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted) 20 A. Eighth Amendment Claim for Excessive Force 21 The Eighth Amendment protects prisoners from inhumane methods of punishment and 22 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 23 2006). 24 Punishments Clause of the Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) 25 (citations omitted). Although prison conditions may be restrictive and harsh, prison officials must 26 provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. 27 Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (quotations omitted). For claims of excessive 28 physical force, the issue is “whether force was applied in a good-faith effort to maintain or restore The unnecessary and wanton infliction of pain violates the Cruel and Unusual 7 1 discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. Although de 2 minimis uses of force do not violate the Constitution, the malicious and sadistic use of force to 3 cause harm always violates the Eighth Amendment, regardless of whether or not significant 4 injury is evident. Hudson, 503 U.S. at 9-10; Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002). 5 Plaintiff’s complaint states a claim for unconstitutional excessive force against defendants 6 Longoria and Flores. Plaintiff has alleged that these defendants emptied their entire cans of 7 pepper spray on Plaintiff even though Plaintiff was not fighting. 8 B. Fourteenth Amendment Claim for Violation of Plaintiff’s Due Process Rights 9 Prisoners retain their right to due process subject to the restrictions imposed by the nature 10 of the penal system. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prison disciplinary 11 proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant 12 in such proceedings does not apply. See id. But the Due Process Clause requires certain 13 minimum procedural protections where serious rules violations are alleged, the power of prison 14 officials to impose sanctions is narrowly restricted by state statute or regulations, and the 15 sanctions are severe. See id. at 556–57, 571–72 n.19. 16 Wolff established five constitutionally mandated procedural requirements for disciplinary First, “written notice of the charges must be given to the disciplinary-action 17 proceedings. 18 defendant in order to inform him of the charges and to enable him to marshal the facts and 19 prepare a defense.” Id. at 564. Second, “at least a brief period of time after the notice, no less 20 than 24 hours, should be allowed to the inmate to prepare for the appearance before the 21 [disciplinary committee].” Id. Third, “there must be a ‘written statement by the factfinders as to 22 the evidence relied on and reasons' for the disciplinary action.” Id. (quoting Morrissey v. Brewer, 23 408 U.S. 471, 489 (1972)). 24 allowed to call witnesses and present documentary evidence in his defense when permitting him 25 to do so will not be unduly hazardous to institutional safety or correctional goals.” Id. at 566. 26 And fifth, “[w]here an illiterate inmate is involved [or] the complexity of the issue makes it 27 unlikely that the inmate will be able to collect and present the evidence necessary for an adequate 28 comprehension of the case, he should be free to seek the aid of a fellow inmate, or ... to have Fourth, “the inmate facing disciplinary proceedings should be 8 1 adequate substitute aid ... from the staff or from a[n] ... inmate designated by the staff.” Id. at 2 570. 3 Additionally, “some evidence” must support the decision of the hearing officer. 4 Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly stringent and 5 the relevant inquiry is whether “there is any evidence in the record that could support the 6 conclusion reached….” Id. at 455-56. 7 A[A prison] grievance procedure is a procedural right only, it does not confer any 8 substantive right upon the inmates.@ Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing 9 Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 10 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a 11 specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of 12 grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 13 (9th Cir. 1988). 14 procedural protections envisioned by the Fourteenth Amendment.@ Azeez, 568 F. Supp. at 10; 15 Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner=s 16 administrative appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d at 17 495. AHence, it does not give rise to a protected liberty interest requiring the 18 Plaintiff fails to state a claim for violation of his due process rights. First, as described 19 above, Plaintiff has neither a liberty interest nor a substantive right in the inmate grievance 20 process. Thus Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 21 appeals/staff complaint. 22 Second, based on the allegations, it appears that Plaintiff received all the process to which 23 he was due in his second RVR hearing.1 There was a hearing, Plaintiff was allowed to testify, 24 Plaintiff was allowed to call witnesses, it appears that the hearing officer relied on numerous 25 1 26 27 28 Plaintiff has not stated a claim for violation of his due process rights based on the first RVR hearing because there is no procedural due process claim if the procedural error was corrected through the administrative appeal process. Frank v. Schultz, 808 F.3d 762, 764 (9th Cir. 2015). See also Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir. 1995) (“There is no denial of due process if the error the inmate complains of is corrected in the administrative appeal process.”). Here, even if there were procedural errors in the first RVR hearing, they were corrected by having the RVR reheard. 9 None of Plaintiff’s 1 pieces of evidence, and it appears that there was a written decision. 2 allegations, even if true, show a violation of the standards laid out in Wolf and Superintendent. 3 Accordingly, Plaintiff has failed to state a due process claim against any defendant. 4 C. First Amendment Claim for Retaliation 5 Prisoners have a First Amendment right to be free from retaliation for filing grievances 6 against prison officials. Waitson v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. 7 Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). A retaliation claim has five elements. Id. at 1114. 8 First, the plaintiff must show that the underlying conduct is protected. Id. The filing of an inmate 9 grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as are the 10 rights to speech and to petition the government, Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 11 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 12 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the defendant took adverse action 13 against the plaintiff. Rhodes, at 567. Third, the plaintiff must show a causal connection between 14 the adverse action and the protected conduct. Waitson, 668 F.3d at 1114. Fourth, the plaintiff 15 must show that the “official's acts would chill or silence a person of ordinary firmness from future 16 First Amendment activities.” Rhodes, 408 F.3d at 568. Fifth, the plaintiff must show “that the 17 prison authorities' retaliatory action did not advance legitimate goals of the correctional 18 institution....” Rizzo, 778 F.2d at 532. 19 Plaintiff’s claim for retaliation fails against all defendants because Plaintiff has alleged no 20 facts that would show a causal connection between the adverse actions and Plaintiff’s protected 21 conduct. Instead, Plaintiff makes conclusory allegations that he was retaliated against for filing 22 appeals. This is not enough to state a cognizable claim for retaliation. 23 IV. 24 The Court has screened Plaintiff’s complaint and finds that it states a cognizable claim for 25 unconstitutional excessive force against Defendants Longoria and Flores. The Court finds that 26 the complaint states no other cognizable claims against these defendants or against any other 27 defendant. 28 CONCLUSION AND ORDER In light of this conclusion and the law cited above, Plaintiff shall choose between 10 1 proceeding only on the claim for unconstitutional excessive force against Defendants Longoria 2 and Flores, amending the complaint if Plaintiff believes that additional facts would establish 3 additional claims or claims against additional defendants, or standing on the current complaint 4 subject to the Court issuing findings and recommendations to the district judge consistent with 5 this order. 6 Should Plaintiff choose to amend the complaint, the amended complaint should be brief, 7 Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of 8 Plaintiff’s constitutional or other federal rights, Iqbal, 556 U.S. at 678; Jones v. Williams, 297 9 F.3d 930, 934 9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a 10 claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). There is no 11 respondeat superior liability, and each defendant is only liable for his or her own misconduct. 12 Iqbal, 556 U.S. at 677. Plaintiff must demonstrate that each defendant personally participated in 13 the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). Plaintiff is advised that a 14 short, concise statement of the allegations in chronological order will assist the court in 15 identifying his claims. 16 describing personal acts by the individual defendant that resulted in the violation of Plaintiff’s 17 rights. Plaintiff should also describe any harm he suffered as a result of the violation. Plaintiff should name each defendant and explain what happened, 18 Plaintiff should note that although he has been given the opportunity to amend, it is not for 19 the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 507 20 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 21 If Plaintiff decides to file an amended complaint, he is advised that an amended complaint 22 supersedes the original complaint, Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 23 2012) (en banc), and it must be complete in itself without reference to the prior or superseded 24 pleading, Local Rule 220. Once an amended complaint is filed, the original complaint no longer 25 serves any function in the case. Therefore, in an amended complaint, as in an original complaint, 26 each claim and the involvement of each defendant must be sufficiently alleged. The amended 27 complaint should be clearly and boldly titled “First Amended Complaint,” refer to the appropriate 28 case number, and be an original signed under penalty of perjury. 11 1 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 2 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 3 2. Within thirty (30) days from the date of service of this order, Plaintiff shall either: 4 a. Notify the Court in writing that he does not wish to file an amended complaint 5 and is instead willing to proceed only on the claim for unconstitutional 6 excessive force against defendants Longoria and Flores; 7 b. File a First Amended Complaint; or 8 c. Notify the Court in writing that he does not agree to go forward on only the 9 claims found cognizable by this order or file an amended complaint, in which 10 case the Court will issue findings and recommendations to the district judge 11 consistent with this order. 12 3. Should Plaintiff choose to amend the complaint, Plaintiff shall caption the 13 amended complaint “First Amended Complaint” and refer to the case number 14 1:17-cv-00245-EPG; and 15 4. Failure to comply with this order will result in the dismissal of this action. 16 17 18 19 IT IS SO ORDERED. Dated: March 20, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 12

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