Speck v. Shasta County Sheriff Department et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 06/22/11 VACATING 9 FINDINGS AND RECOMMENDATIONS; Complaint DISMISSED WITH LEAVE TO AMEND within 30 days. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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COREY D. SPECK,
Plaintiff,
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No. CIV S-09-3440 GEB EFB P
vs.
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SHASTA COUNTY SHERIFF
DEPARTMENT, et al.,
Defendants.
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ORDER
Corey Speck filed this pro se civil rights action under 42 U.S.C. § 1983. At the time that
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he filed his complaint he was in jail. It is not clear to the court whether he is currently
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incarcerated.
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On March 30, 2011, the court found that plaintiff’s claims were barred by Heck v.
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Humphrey, 512 U.S. 477 (1994), because his claims challenged the validity of his conviction or
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sentence and he had not demonstrated that his sentence had previously been invalidated. On
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April 21, 2011, plaintiff filed objections implying that the charges against him had been
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dismissed.
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A section 1983 action alleging illegal search and seizure of evidence upon which
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criminal charges are based does not accrue until the criminal charges have been dismissed or the
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conviction has been overturned. Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000). It is
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not clear whether plaintiff is currently incarcerated based on criminal charges stemming from his
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allegedly unconstitutional arrest or search and seizure. It may be that the charges against
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plaintiff related to the arrest at issue have been dismissed, and plaintiff is currently incarcerated
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on unrelated charges.
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Therefore, the court vacates its March 30 findings and recommendations. Plaintiff is
granted 30 days to file an amended complaint clarifying his claims.
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Any amended complaint must adhere to the following requirements:
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It must be complete in itself without reference to any prior pleading. E.D. Cal. Local
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Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended
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complaint, the original pleading is superseded.
It must show that the federal court has jurisdiction and that plaintiff’s action is brought in
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the right place, that plaintiff is entitled to relief if plaintiff’s allegations are true, and must
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contain a request for particular relief. Plaintiff must identify as a defendant only persons who
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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.
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Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if
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he does an act, participates in another’s act or omits to perform an act he is legally required to do
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that causes the alleged deprivation).
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It must contain a caption including the name of the court and the names of all parties.
Fed. R. Civ. P. 10(a).
Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ.
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P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences,
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the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join
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multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). Unrelated claims
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against different defendants must be pursued in multiple lawsuits. “The controlling principle
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appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as
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alternate claims, as many claims . . . as the party has against an opposing party.’ Thus multiple
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claims against a single party are fine, but Claim A against Defendant 1 should not be joined with
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unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in
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different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit
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produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation
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Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file
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without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605,
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607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants not permitted unless
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both commonality and same transaction requirements are satisfied).
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The allegations must be short and plain, simple and direct and describe the relief plaintiff
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seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v.
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County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). A long, rambling pleading,
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including many defendants with unexplained, tenuous or implausible connection to the alleged
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constitutional injury or joining a series of unrelated claims against many defendants very likely
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will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing
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plaintiff’s action pursuant to Rule 41 of the Federal Rules of Civil Procedure for violation of
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these instructions.
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Plaintiff must sign the complaint. Fed. R. Civ. P. 11(a). By signing an amended
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complaint, plaintiff certifies he has made reasonable inquiry and has evidentiary support for his
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allegations and that for violation of this rule the court may impose sanctions sufficient to deter
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repetition by plaintiff or others. Fed. R. Civ. P. 11.
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A prisoner may bring no § 1983 action until he has exhausted such administrative
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remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth
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v. Churner, 532 U.S. 731, 741 (2001). By signing an amended complaint plaintiff certifies his
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claims are warranted by existing law, including the law that he exhaust administrative remedies,
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and that for violation of this rule plaintiff risks dismissal of his entire action.
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Accordingly, it is hereby ORDERED that:
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1. The court’s March 30, 2011 findings and recommendations are vacated; and
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2. The complaint is dismissed with leave to amend within 30 days. The amended
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complaint must bear the docket number assigned to this case and be titled “First Amended
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Complaint.” Failure to comply with this order will result in a recommendation that this action be
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dismissed. If plaintiff files an amended complaint stating a cognizable claim the court will
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proceed with service of process by the United States Marshal.
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Dated: June 22, 2011.
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