Jones v. Prater et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 5/30/2012 ORDERING that plaintiff's amended complaint is DISMISSED; and plaintiff has 30 days to file a second amended complaint along with the Notice of Amendment. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MALIK JONES,
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Plaintiff,
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vs.
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No. 2:10-cv-01381 JAM KJN P
C. PRATER, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis.
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Plaintiff’s original complaint, filed pursuant to 42 U.S.C. § 1983, was dismissed with leave to
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file an amended complaint. Plaintiff’s amended complaint is now before the court.
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. 28
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U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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A complaint, or portion thereof, should only be dismissed for failure to state a
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claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set
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of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &
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Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer
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v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a
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complaint under this standard, the court must accept as true the allegations of the complaint in
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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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Plaintiff’s amended complaint alleges six causes of action against sixteen
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defendants. This amended complaint suffers from the same defect as the original complaint.
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Each cause of action is again made only generally against all defendants without linkage to any
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specific defendant(s). The numerous paragraphs reciting myriad slights against plaintiff is
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unhelpful in clarifying plaintiff’s legal claims, because it details numerous and unrelated
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incidents from early 2009 through February 2010. It remains difficult to discern the nature and
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bases of plaintiff’s claims and the identity of the defendants against whom these claims are made.
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In addition, plaintiff makes reference to constitutional violations in the text of his amended
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complaint that are not included in the causes of action pled.
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First, plaintiff includes allegations concerning a false prison disciplinary. “A
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prisoner has no constitutionally guaranteed immunity from being wrongly or falsely accused of
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conduct which may result in the deprivation of a protected liberty interest.” Lopez v. Celaya,
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2008 WL 205256 at *5 (N.D. Cal. Jan. 23, 2008), citing, inter alia, Sprouse v. Babcock, 870 F.2d
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450, 452 (8th Cir. 1989). Although the filing of a false disciplinary action against an inmate is
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not a per se civil rights violation, there are two ways that allegations that an inmate has been
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subjected to a false claim can state a cognizable civil rights claim. The first is when the inmate
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alleges that the false report was in retaliation for the exercise of a constitutionally protected right
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under the First Amendment. See Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997) (retaliation
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claim must rest on proof that defendant filed disciplinary action in retaliation for inmate’s
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exercise of his constitutional rights and that the retaliatory action advanced no legitimate
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penological interest); Newsom v. Norris, 888 F.2d 371, 377 (9th Cir. 1989). The second is when
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the inmate is not afforded the procedural due process required by the due process clause in
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connection with the issuance and hearing of disciplinary reports. See Newsom, 888 F.2d at 377;
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see also Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (claim that prison guard planted
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false evidence which resulted in disciplinary infraction fails to state a cognizable civil rights
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claim where procedural due process protections are provided).
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Plaintiff claims some of the alleged acts were done in retaliation, but does not
identify plaintiff’s constitutionally protected conduct.
“Within the prison context, a viable claim of First Amendment retaliation entails
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five basic elements: “(1) An assertion that a state actor took some adverse action against an
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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a
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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). An
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allegation of harm may be sufficient even if an inmate cannot allege a chilling effect. Id. In
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order to prevail on a retaliation claim, plaintiff must demonstrate that he engaged in protected
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conduct and that retaliation for the exercise of protected conduct was the “substantial” or
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“motivating” factor behind the defendant's conduct. See Soranno's Gasco, Inc. v. Morgan, 874
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F.2d 1310, 1314 (9th Cir. 1989). In the context of a retaliation claim brought by an inmate, the
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plaintiff must also demonstrate an absence of legitimate correctional goals for the conduct he
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contends was retaliatory. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (citing Rizzo v.
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Dawson, 778 F.2d 527, 532 (9th Cir. 1985).
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Also, plaintiff cannot state a cognizable Eighth Amendment violation based on an
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allegation that defendants issued a false rules violation against plaintiff. Cota v. Scribner, 2011
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WL 4914934, *7, n.4 (S.D. Cal. 2011).
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Second, it appears plaintiff may be able to state a cognizable excessive use of
force claim as to defendants Prater, Baumiller, and Lee.
The analysis of an excessive force claim brought pursuant to Section 1983 begins
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with “identifying the specific constitutional right allegedly infringed by the challenged
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application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989). The Eighth Amendment's
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prohibition on cruel and unusual punishment applies to incarcerated individuals. Whitley v.
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Albers, 475 U.S. 312, 318 (1976). To state an Eighth Amendment claim, a plaintiff must allege
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that the use of force was “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267
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F.3d 895, 910 (9th Cir. 2001). The malicious and sadistic use of force to cause harm always
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violates contemporary standards of decency, regardless of whether or not significant injury is
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evident. Hudson v. McMillian, 503 U.S. 1, 9 (1992); see also Oliver v. Keller, 289 F.3d 623,
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628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of
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force, not de minimis injuries). However, not “every malevolent touch by a prison guard gives
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rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition
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of cruel and unusual punishments necessarily excludes from constitutional recognition de
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minimis uses of physical force, provided that the use of force is not of a sort repugnant to the
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conscience of mankind.” Id. at 9-10 (internal quotations marks and citations omitted).
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Whether force used by prison officials was excessive is determined by inquiring if
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the “force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
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sadistically to cause harm.” Hudson, 503 U.S. at 6-7. Courts evaluate the need for application of
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force; the relationship between that need and the amount of force applied; the extent of the injury
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inflicted; the extent of the threat to the safety of staff and inmates as reasonably perceived by
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prison officials; and any efforts made to temper the severity of the response. See Whitley, 475
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U.S. at 321. The absence of significant injury alone is not dispositive of a claim of excessive
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force. See Wilkens v. Gaddy, 130 S. Ct. 1175, 1176-77 (2010) (dismissal based on
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determination that injuries were de minimis, without more, requires reversal).
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If plaintiff intends to pursue an excessive force claim, he should include such a
cause of action and clearly identify the defendants he alleges used excessive force.
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Third, plaintiff may be able to state a failure to protect claim under the Eighth
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Amendment. Plaintiff alleges that as defendants Lee and Baumiller allegedly used excessive
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force on plaintiff, defendants Maydole and a doe defendant cheered and failed to intervene to
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stop the acts or to protect plaintiff. “[A] prison official can violate a prisoner's Eighth
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Amendment rights by failing to intervene.” Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir.
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1995), citing Del Raine v. Williford, 32 F.3d 1024, 1038 (7th Cir.1994) (“A failure of prison
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officials to act in such circumstances suggests that the officials actually wanted the prisoner to
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suffer the harm.”).
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Fourth, plaintiff fails to state a claim under the Fourteenth Amendment. “[The
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treatment a prisoner receives and the conditions under which he is confined are subject to
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scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). The
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Eighth Amendment “requires that inmates be furnished with the basic human needs, one of
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which is ‘reasonable safety.’” Id. at 33 (quoting Deshaney v. Winnebago County Dep't of Soc.
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Servs., 489 U.S. 189, 200 (1989)). Claims that defendants failed to protect plaintiff from a
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substantial risk of serious harm at the hands of other inmates are properly analyzed under the
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Eighth Amendment because plaintiff is a state inmate incarcerated pursuant to a valid conviction.
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See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Helling, 509 U.S. at 35).
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Here, plaintiff attempts to raise a claim under the Fourteenth Amendment for the
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same conduct he claims violates the Eighth Amendment. Because the Eighth Amendment
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provides an explicit source of protection for the type of conduct alleged by plaintiff, his claim is
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properly stated under the Eighth Amendment, rather than the Fourteenth Amendment. Thus,
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plaintiff’s allegations fail to state a claim under the Fourteenth Amendment as the claims are
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properly analyzed under the Eighth Amendment.
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Fifth, plaintiff’s claim under the equal protection clause fails as well. The Equal
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Protection Clause “is essentially a direction that all persons similarly situated be treated alike.”
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City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). “To state a claim
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under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth
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Amendment a plaintiff must show that the defendants acted with an intent or purpose to
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discriminate against the plaintiff based upon membership in a protected class.” Lee v. City of
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Los Angeles, 250 F.3d 668, 686-87 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d
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1193, 1194 (9th Cir. 1998)).
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Here, plaintiff does not allege facts susceptible of an inference that defendants
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have discriminated against him on the basis of race, religion, or any other suspect classification.
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Rather, plaintiff generally alleges violation of equal protection.” (Dkt. No. 15 at 6.) As noted
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above, plaintiff’s failure to protect claims are properly analyzed under the Eighth Amendment.
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Thus, plaintiff fails to state an equal protection claim under the Fourteenth Amendment.
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Sixth, plaintiff pleads a state law claim under California Civil Code § 52.1, known
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as the Bane Act. Section 52.1 establishes a private right of action for damages and other relief
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against a person who “interferes by threats, intimidation, or coercion,” or attempts to so interfere,
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with the exercise or enjoyment of a individual's constitutional or other legal right. Id., subds. (a),
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(b). In the amended complaint, aside from failing to connect a named defendant with this cause
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of action, plaintiff does not make clear what constitutional or other legal rights the alleged threats
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interfered with.
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For all of the above reasons, the court finds the allegations in plaintiff's amended
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complaint so vague and conclusory that it is unable to determine whether the current action is
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frivolous or fails to state a claim for relief. The court has determined that the amended complaint
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does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the
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Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the
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elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646,
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649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts
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which defendants engaged in that support plaintiff's claim. Id. Because plaintiff has failed to
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comply with the requirements of Fed. R. Civ. P. 8(a)(2), the amended complaint must be
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dismissed. The court will, however, grant leave to file a second amended complaint.
If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate
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how the conditions complained of have resulted in a deprivation of plaintiff's constitutional
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rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended complaint
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must allege in specific terms how each named defendant is involved. There can be no liability
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under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's
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actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto,
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633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Furthermore, vague and conclusory allegations of official participation in civil rights violations
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are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in
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order to make plaintiff's second amended complaint complete. Local Rule 220 requires that an
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amended complaint be complete in itself without reference to any prior pleading. This is
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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the
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original pleading no longer serves any function in the case. Therefore, in a second amended
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complaint, as in an original complaint, each claim and the involvement of each defendant must
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be sufficiently alleged.
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Finally, this is the second opportunity the court has given plaintiff to clearly
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connect the named defendant with the cause of action plaintiff intends to pursue. The court notes
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that plaintiff is not a novice litigator inasmuch as plaintiff has filed thirteen civil rights actions in
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this court, six of which are still pending. Plaintiff is cautioned that failure to file a second
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amended complaint that complies with this order will result in a recommendation that this action
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be dismissed.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff's amended complaint is dismissed; and
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2. Plaintiff is granted thirty days from the date of service of this order to file a
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second amended complaint that complies with the requirements of the Civil Rights Act, the
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Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint
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must bear the docket number assigned this case and must be labeled “Second Amended
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Complaint”; plaintiff must file an original and two copies of the second amended complaint;
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failure to file a second amended complaint in accordance with this order will result in a
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recommendation that this action be dismissed.
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DATED: May 30, 2012
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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jone1381.lta2
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MALIK JONES,
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Plaintiff,
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vs.
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No. 2:10-cv-01381 JAM KJN P
C. PRATER, et al.,
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Defendants.
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Plaintiff hereby submits the following document in compliance with the court's
order filed
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NOTICE OF AMENDMENT
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Amended Complaint
DATED:
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Plaintiff
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