Coleman v. Turner et al

Filing 12

ORDER signed by Magistrate Judge Craig M. Kellison on 2/19/15 ORDERING that Plaintiff's motion to file a first amended complaint (Doc. 5 ) is denied as unnecessary; Plaintiff's first amended complaint is accepted as filed, but is dismiss ed with leave to amend; Plaintiff's motion to file a second amended complaint (Doc. 10 ) is denied; Plaintiff's second amended complaint is hereby stricken; Plaintiff shall file a third amended complaint within 30 days of the date of service of this order, which complies with the above discussion; and Plaintiff's motion for temporary restraining order (Doc. 7 ) is denied.(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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ROBERT E. COLEMAN,

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No. 2:13-cv-2322-CMK-P

Plaintiff,
vs.

ORDER

G. TURNER, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court are plaintiff’s motions to file amended and/or

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supplemental complaint (Docs. 5, 10) and a motion for temporary restraining order (Doc. 7).

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The Federal Rules of Civil Procedure provide that a party may amend his or her

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pleading “ once as a matter of course at any time before a responsive pleading is served.” Fed. R.

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Civ. P. 15(a). Once a responsive pleading is filed, a party’s pleadings may only be amended

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upon leave of court or stipulation of all the parties. See id. Where leave of court to amend is

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sought, the court considers the following factors: (1) whether there is a reasonable relationship

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between the original and amended pleadings; (2) whether the grant of leave to amend is in the

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interest of judicial economy and will promote the speedy resolution of the entire controversy; (3)
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whether there was a delay in seeking leave to amend; (4) whether the grant of leave to amend

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would delay a trial on the merits of the original claim; and (5) whether the opposing party will be

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prejudiced by amendment. See Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir.

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1990). Leave to amend should be denied where the proposed amendment is frivolous. See DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

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Accordingly, plaintiff’s first motion to amend his complaint was unnecessary, and

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will be denied as such. As discussed more below, the allegations alleged in the second amended

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complaint are insufficient to state a claim beyond that alleged in the first amendment complaint.

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Plaintiff attempts to bring in several additional claims, which are not related to those raised in the

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original complaint, and attempts to bring in several additional defendants, many of whom the

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claims are insufficient and would be dismissed. Therefore, allowing such an amendment would

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be futile. As such, the second motion will be denied. The court will proceed on plaintiff’s first

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amended complaint (Doc. 6), which is discussed more fully below, but all of plaintiff’s claims

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that the court can decipher will be addressed herein.

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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. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means

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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,

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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the
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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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In plaintiff’s original complaint, he alleges violations of his due process rights,

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and his First and Eighth Amendment rights. The claims change a bit in his amended complaint,

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in which he alleges American’s with Disabilities Act violations, due process, and Eighth

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Amendment violations. In his second amended complaint, plaintiff sets forth a long recitation

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regarding the way he has been treated at several different prisons (most of which is simply

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historical reference), and continues to allege due process violations, adding in inadequate mental

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health care, supervisorial liability for policies and treatment by subordinates, and First

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Amendment violations regarding the inmate appeals process. All of plaintiff’s claims appear to

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relate to a prison disciplinary proceeding in which he was found guilty of inappropriate behavior,

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his punishment therefore, and his general treatment regarding his mental health issues which

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contribute to his behavior.

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II. DISCUSSION

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As a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, where an amended complaint is

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filed, all claims alleged in the original complaint which are not alleged in the amended complaint

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are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). However, regardless of

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which complaint plaintiff raises the claims in, those which the court can identify are be discussed

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below.

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As to his complaint in general, § 1983 imposes liability upon any person who,

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acting under color of state law, deprives another of a federally protected right. 42 U.S.C. § 1983

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(1982). “To make out a cause of action under section 1983, plaintiffs must plead that (1) the

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defendants acting under color of state law (2) deprived plaintiffs of rights secured by the
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Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986).

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To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link

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between the actions of the named defendants and the alleged deprivations. See Monell v. Dep’t

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of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person

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‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he

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does an affirmative act, participates in another's affirmative acts, or omits to perform an act

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which he is legally required to do that causes the deprivation of which complaint is made.”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth

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specific facts as to each individual defendant’s causal role in the alleged constitutional

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deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Supervisory personnel are generally not liable under § 1983 for the actions of their

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employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no

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respondeat superior liability under § 1983). A supervisor is only liable for the constitutional

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violations of subordinates if the supervisor participated in or directed the violations. See id. The

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Supreme Court has rejected the notion that a supervisory defendant can be liable based on

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knowledge and acquiescence in a subordinate’s unconstitutional conduct because government

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officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct

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and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).

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Supervisory personnel who implement a policy so deficient that the policy itself is a repudiation

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of constitutional rights and the moving force behind a constitutional violation may, however, be

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liable even where such personnel do not overtly participate in the offensive act. See Redman v.

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Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

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When a defendant holds a supervisory position, the causal link between such

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel

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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the constitution.” Iqbal, 129 S.Ct. at 1948.

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To the extent plaintiff fails to allege specific facts against some of the individuals
he names as defendants, plaintiff is informed that in any amended complaint he may file, he is

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required to specify how each defendant named was involved in the claim he raises. Similarly, to

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the extent plaintiff wishes to name the supervisory defendants, such as the warden, solely on the

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basis of their supervisory position, such an allegation is insufficient to state a claim in a § 1983

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action. Any supervisor must have been directly personally involved in any violation of plaintiff’s

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rights before liability will attach, and plaintiff will be required to plead such involvement

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specifically with each and every defendant.

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A. FIRST AMENDMENT

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Prisoners have no stand-alone due process rights related to the administrative

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grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); see also Ramirez v.

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Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest entitling

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inmates to a specific grievance process). Because there is no right to any particular grievance

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process, it is impossible for due process to have been violated by ignoring or failing to properly

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process grievances. Numerous district courts in this circuit have reached the same conclusion.

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See Smith v. Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly

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process grievances did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863

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(N.D. Cal. 1996) (concluding that prison officials’ failure to properly process and address

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grievances does not support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL
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29580 (N.D. Cal. 1995) (dismissing complaint without leave to amend because failure to process

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a grievance did not implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967

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(N.D. Cal. 1994) (concluding that prisoner’s claim that grievance process failed to function

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properly failed to state a claim under § 1983). Prisoners do, however, retain a First Amendment

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right to petition the government through the prison grievance process. See Bradley v. Hall, 64

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F.3d 1276, 1279 (9th Cir. 1995) (overruled on other grounds by Shaw v. Murphy, 532 U.S. 223,

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230, n. 2 (2001)). Therefore, interference with the grievance process may, in certain

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circumstances, implicate the First Amendment, such as when the interference violates the

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inmate’s right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 346 (1996). However,

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the right is merely the right to bring to court a grievance the inmate wishes to present, and is

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limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at

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354. To bring a claim, the plaintiff must have suffered an actual injury by being shut out of

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court. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351.

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Here, plaintiff indicates that he has had difficulty with the inmate grievance

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process, and has expressed his frustration with having his inmate appeals screened out or

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erroneously denied. However, plaintiff may not pursue a claim for denial of access to the courts

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based on the failure of staff to respond to his appeals or based on the rejection of his appeals by

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staff. Plaintiff does not have a constitutionally protected right to have his appeals accepted or

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processed. See Ramirez, 334 F.3d at 860. Plaintiff does not allege that he has suffered any

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actual injury by being shut out of court by such action. Therefore, he makes no showing that his

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First Amendment rights have been violated. The defects in this claim are subject to cure if

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plaintiff has in fact suffered an actual injury and has been shut out of court due to the defendants’

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actions. If he can so allege, he may include this claim in his third amended complaint. If he has

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not suffered any actual injury, however, this claim should not be included in his third amended

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complaint.

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B. EIGHTH AMENDMENT

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The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only

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when two requirements are met: (1) objectively, the official’s act or omission must be so serious

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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable mind.” See id.

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Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

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injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at

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105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental

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health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is

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sufficiently serious if the failure to treat a prisoner’s condition could result in further significant

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injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).

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Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition

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is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily

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activities; and (3) whether the condition is chronic and accompanied by substantial pain. See

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Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).
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The requirement of deliberate indifference is less stringent in medical needs cases

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than in other Eighth Amendment contexts because the responsibility to provide inmates with

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medical care does not generally conflict with competing penological concerns. See McGuckin,

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974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

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decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

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1989). The complete denial of medical attention may constitute deliberate indifference. See

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Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

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treatment, or interference with medical treatment, may also constitute deliberate indifference.

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See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also

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demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

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Negligence in diagnosing or treating a medical condition does not, however, give

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rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

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difference of opinion between the prisoner and medical providers concerning the appropriate

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course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996).

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Plaintiff’s Eighth Amendment claim is unclear. He appears to be alleging that his

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Eighth Amendment rights have been violated by keeping him in administrative segmentation

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because he is not receiving the mental health treatment he needs. This claim, however, is tied

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with his complaints about being sent to different prisons where the mental health treatment he

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needs was not offered. This additional historical reference makes it unclear whether his current

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claim relates to receiving mental health treatment at his current location or not. If his claim is

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related to being denied mental health treatment, he again needs to name the individuals

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responsible for refusing him such treatment. As the defects in this claim are also curable,

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plaintiff will be granted leave to amend this claim. However, he is again reminded that he must

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allege sufficient facts to state a claim, and specify who is violating his Eighth Amendment rights

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and how.
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C. DUE PROCESS

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Plaintiff’s main claim appears to be his due process claim relating to a prison

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disciplinary proceeding. The Due Process Clause protects prisoners from being deprived of life,

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liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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In order to state a claim of deprivation of due process, a plaintiff must allege the existence of a

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liberty or property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S.

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651, 672 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Liberty interests can arise

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both from the Constitution and from state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983);

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Meachum v. Fano, 427 U.S. 215, 224-27 (1976); Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir.

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1993). In determining whether the Constitution itself protects a liberty interest, the court should

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consider whether the practice in question “. . . is within the normal limits or range of custody

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which the conviction has authorized the State to impose.” Wolff, 418 U.S. at 557-58; Smith, 994

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F.2d at 1405. Applying this standard, the Supreme Court has concluded that the Constitution

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itself provides no liberty interest in good-time credits, see Wolff, 418 U.S. at 557; in remaining

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in the general population, see Sandin v. Conner, 515 U.S. 472, 485-86 (1995); in not losing

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privileges, see Baxter v. Palmigiano, 425 U.S. 308, 323 (1976); in staying at a particular

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institution, see Meachum, 427 U.S. at 225-27; or in remaining in a prison in a particular state, see

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Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983).

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In determining whether state law confers a liberty interest, the Supreme Court has

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adopted an approach in which the existence of a liberty interest is determined by focusing on the

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nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

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Court has held that state law creates a liberty interest deserving of protection only where the

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deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

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sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

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the procedures used in prison disciplinary hearings where a successful claim would not
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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

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Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

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result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

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Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate

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release from prison were cognizable under § 1983).

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With respect to prison disciplinary proceedings, due process requires prison

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officials to provide the inmate with: (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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Here, plaintiff alleges defendant Houghland, Blap, Avalos, Turner, and Meir all

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violated his due process rights. He claims he was denied a staff assistant during the disciplinary

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proceedings, had a hearing before a biased hearing officer, was not allowed to speak freely,

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received excessive punishment based on his past behavior not the incident in question, and the

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officials used false information to assess him with an “R” suffix. In addition, he received an

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additional invalid rules violation for refusing a cellmate based on his mental health. A majority

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of the allegations alleged are included in his second amended complaint, which as discussed,
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leave to file is not being given. The only allegation in his first amended complaint relating to due

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process was the denial of a staff assistant. This appears to be the only viable claim at this time,

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but as is too wrapped up in other inadequate claims to be clear, it also will be dismissed.

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Plaintiff will be given leave to amend this claim, but must explain how his due process rights

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were violated and by whom.

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III. TEMPORARY RESTRAINING ORDER
Finally, plaintiff is requesting temporary restraining order requiring the prison to

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provide him with a single cell, not to transfer him to a different prison, remove the “R” suffix

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from his status, and not to engage in any retaliation.

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The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

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Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser

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standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374).

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As to the likelihood of success on the merits of plaintiff’s claims, the claims as

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presented are deficient and many are not amenable to cure. It appears at this time that there is a

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very limited chance of success on the merits of petitioner’s case. His complaint, as set forth

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herein, is deficient and will be dismissed with leave to amend those claims which he may be able

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to cure the defects. However, given the information before the court currently, it does not appear

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he will be successful given all of the deficiencies identified herein. As to the irreparable harm,
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plaintiff’s claim to such is unclear. In essence, he claims having the “R” suffix attached to his

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status, along with the stigma attached thereto, is making life more difficult. There is no

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indication that he is actually suffering from some irreparable harm, other than having to deal with

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that stigma. He also does not allege that he has been informed as to any plans to transfer him at

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this time. Rather, he appears to be complaining about a prior transfer to Corcoran. However, he

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is no longer housed there, and does not appear to have any objection his current housing location.

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Therefore, even if successful on the merits of his claims, he fails to allege sufficient irreparable

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harm to justify a temporary restraining order.

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As to the balance of hardships, plaintiff offers no reason why the balance would

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tip in his favor. Requiring the prison to house plaintiff in a specific manner, in a specific location

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would be a significant hardship on the prison. Such a restriction would only be justified in a

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serious situation, which does not appear present here. Plaintiff makes no allegations, nor can the

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court see any based on the facts alleged, that his safety is in serious jeopardy. Finally, the court

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sees no public interest in restricting the prison from housing plaintiff in a specific manner or in a

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specific location.

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Accordingly, plaintiff fails to make the required showing for a temporary
restraining order at this time. His motion for such will be denied.
IV. CONCLUSION

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Because it is possible that some of the deficiencies identified in this order may be

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cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the

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entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original

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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following

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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged

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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order
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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint

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must be complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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As stated above, that Rule 8 requires a complaint contain a short and plain

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statement of the claim. Attaching numerous documents to a complaint which purportedly

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support the factual allegations against the defendants does not satisfy the requirement of Federal

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Rule of Civil Procedure 8(a) that claims must be stated simply, concisely, and directly. To the

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contrary, such a complaint would require the court to comb through numerous pages of

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documents in order to guess at plaintiff’s claims, a task the court is unwilling and unable to do, in

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part due to limited judicial resources but also because it is for plaintiff – not the court – to

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formulate his claims. Accordingly, plaintiff is informed that in any amended complaint he files,

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his claims must be written simply, concisely, and directly, setting forth facts showing how each

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defendant personally violated his Constitutional rights. If this case survives screening and

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preliminary motions, he will have an opportunity to submit evidence and documents to the court

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in support of his claims. However, attaching numerous documents to the complaint is

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unnecessary. Failure to comply with Rule 8 may, in the court’s discretion, be dismissed with

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prejudice pursuant to Rule 41(b). See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673

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(9th Cir. 1981).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to file a first amended complaint (Doc. 5) is denied as

2.

Plaintiff’s first amended complaint is accepted as filed, but is dismissed

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unnecessary;

with leave to amend;

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3.

Plaintiff’s motion to file a second amended complaint (Doc. 10) is denied;

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4.

Plaintiff’s second amended complaint is hereby stricken;

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5.

Plaintiff shall file a third amended complaint within 30 days of the date of

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service of this order, which complies with the above discussion; and
6.

Plaintiff’s motion for temporary restraining order (Doc. 7) is denied.

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DATED: February 19, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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