Crayon v. Hill et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 4/11/13 ORDERING that 6 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHARLES E. CRAYON,
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Plaintiff,
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vs.
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No. 2: 13-cv-0350 KJN P
RICK HILL, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief
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pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to
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28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1)
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and Local Rule 302.
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Plaintiff has submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing
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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court
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will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s prison
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trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to
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make monthly payments of twenty percent of the preceding month’s income credited to
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plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to
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the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing
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fee is paid in full. 28 U.S.C. § 1915(b)(2).
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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.
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28 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.
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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably
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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
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1227.
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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and
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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
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(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more
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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,
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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair
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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept
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as true the allegations of the complaint in question, id., and construe the pleading in the light
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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other
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grounds, Davis v. Scherer, 468 U.S. 183 (1984).
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Named as defendants are Warden Hill, Appeals Coordinator Stocker and Nurse
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Wang. Plaintiff is diabetic. Plaintiff alleges that on July 7, 2012, he began refusing medication
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and insulin from defendant Wang because defendant “had an attitude” toward plaintiff and did
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not attend to plaintiff’s medical “concerns.” Plaintiff wrote a grievance against defendant Wang.
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Plaintiff alleges that on July 11, 2012, plaintiff saw defendant Wang at the Clinic Window.
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Plaintiff told defendant Wang that he would not accept medication from defendant Wang because
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he did not trust him. Plaintiff took his medication in a cup and went to breakfast. It is not clear
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if defendant Wang gave plaintiff the medication in the cup.
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Shortly after taking his medication, plaintiff had terrible stomach pain. Plaintiff
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was later taken to the hospital. A doctor told plaintiff that he had been given the wrong
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medication. Plaintiff alleges that he received a bill from the hospital even though the incident
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occurred at Folsom State Prison.
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Plaintiff filed several grievances regarding the incident where he was given the
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wrong medication. Plaintiff alleges that all of the grievances were either returned or cancelled.
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Because plaintiff is mentally ill, he did not know how to prepare a proper grievance. Plaintiff
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alleges that defendant Stocker interviewed him regarding his grievances. Defendant Stocker
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allegedly told plaintiff that defendant Wang was not going anywhere.
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Plaintiff alleges that defendant Warden Hill is not concerned about plaintiff’s
health.
The undersigned first considers plaintiff’s claims against defendant Wang.
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Plaintiff’s complaint suggests two possible claims against defendant Wang. First, plaintiff may
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be claiming that defendant Wang gave him the wrong medication in violation of his Eighth
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Amendment right to adequate medical care. The undersigned cannot determine whether plaintiff
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has stated a colorable Eighth Amendment claim because plaintiff does not clearly allege that
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defendant Wang was responsible for him receiving the alleged wrong medication. Plaintiff also
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does not address whether defendant Wang accidentally or intentionally gave him the wrong
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medication. Accordingly, plaintiff’s Eighth Amendment claim against defendant Wang is
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dismissed with leave to amend.
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Plaintiff may also be alleging that defendant Wang gave him the wrong
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medication in retaliation for plaintiff filing a grievance against him. However, plaintiff’s
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complaint does not clearly state that plaintiff is raising a retaliation claim. For this reason,
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plaintiff’s retaliation claim is dismissed with leave to amend. If plaintiff files an amended
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complaint, he must clarify whether he is raising a retaliation claim against defendant Wang. The
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amended complaint must include factual allegations to support a retaliation claim.
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Plaintiff appears to challenge how defendant Stocker handled plaintiff’s
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grievances. However, there is no independent, substantive due process right in how plaintiff’s
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inmate grievances should have been processed. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
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2003)(citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). For these reasons, the
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undersigned finds that plaintiff has not stated a colorable claim against defendant Stocker based
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on her handling of his grievances. Accordingly, plaintiff’s claims against defendant Stocker are
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dismissed with leave to amend.
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The only claim against defendant Warden Hill is that he is not concerned about
plaintiff’s health. These allegations do not state a colorable constitutional claim. Moreover, the
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Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.
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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the
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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
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Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) (“Congress did not intend
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§ 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976)
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(no affirmative link between the incidents of police misconduct and the adoption of any plan or
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policy demonstrating their authorization or approval of such misconduct). “A person ‘subjects’
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another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an
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affirmative act, participates in another's affirmative acts or omits to perform an act which he is
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legally required to do that causes the deprivation of which complaint is made.” Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Moreover, supervisory personnel are generally not liable under § 1983 for the
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actions of their employees under a theory of respondeat superior and, therefore, when a named
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defendant holds a supervisorial position, the causal link between him and the claimed
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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862
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(9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v.
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Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where
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there is no evidence of personal participation). Vague and conclusory allegations concerning the
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involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board
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of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of
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personal participation is insufficient).
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If plaintiff files an amended complaint naming defendant Warden Hill, plaintiff
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must include allegations specifically linking defendant Warden Hill to the alleged deprivations.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights.
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Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms
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how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983
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unless there is some affirmative link or connection between a defendant’s actions and the
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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,
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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official
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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,
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268 (9th Cir. 1982).
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In addition, plaintiff is hereby informed that the court cannot refer to a prior
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pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that
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an amended complaint be complete in itself without reference to any prior pleading. This
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requirement exists because, as a general rule, an amended complaint supersedes the original
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complaint. 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 no longer serves any function in the case. Therefore, in an
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amended complaint, as in an original complaint, each claim and the involvement of each
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defendant must be sufficiently alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (dkt. no. 6) is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.
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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently
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herewith.
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3. Plaintiff’s complaint is dismissed.
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4. Within thirty days from the date of this order, plaintiff shall complete the
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attached Notice of Amendment and submit the following documents to the court:
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a. The completed Notice of Amendment; and
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b. An original and one copy of the Amended Complaint.
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Plaintiff’s amended complaint shall comply 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 amended complaint must
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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”
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Failure to file an amended complaint in accordance with this order may result in the dismissal of
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this action.
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DATED: April 11, 2013
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHARLES E. CRAYON,
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Plaintiff,
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vs.
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No. 2: 13-cv-0350 KJN P
RICK HILL, 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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