Ellis v. Foulk, et al.

Filing 16

ORDER signed by Magistrate Judge Allison Claire on 8/4/15 ORDERING that Plaintiffs second amended complaint (ECF No. 11 ) is DISMISSED; and Plaintiff is granted 30 days from the date of service of this order to file a third amended complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT ELLIS,

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No. 2:14-cv-00802 AC P
Plaintiff,

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v.

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F. FOULK, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding without counsel and in forma pauperis, seeks relief

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pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 28 U.S.C.

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§ 636(b)(1) and Local Rule 302. Plaintiff’s second amended complaint is now before the court.

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ECF No. 11. Plaintiff has consented to the jurisdiction of the undersigned. ECF No. 7.

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I.

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Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 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 (9th
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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 claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding,

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467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v.

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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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II.

Second Amended Complaint

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In his second amended complaint, plaintiff names Sgt. D. Qualls, Lt. Harper, Lt. M. Lee,

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Appeals Coordinator L. Lopez, and Warden F. Foulk as defendants. ECF No. 11. He challenges

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a prison disciplinary proceeding, alleging that the disciplinary was issued in retaliation for his

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participation in a hunger strike and that there were due process violations at his disciplinary

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hearing and throughout the appeals process. Id. at 1-10.

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Although plaintiff has provided additional details, the allegations in his second amended

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complaint are substantially similar to those contained in his first amended complaint. Plaintiff

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alleges that defendant Qualls wrote a false report in which he stated that plaintiff “participated in

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a mass hunger strike on July 8, 2013.” ECF No. 11 at 1. As in the first amended complaint,

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plaintiff alleges that defendant Qualls violated his due process rights by writing up a rules

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violation report (RVR) that was based on what another officer had seen, rather than what Qualls

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had seen, even though reports must be written by the officer that witnessed the incident. Id. at 7.

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Plaintiff now alleges that the RVR was written in retaliation for his refusal to take a food tray,
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which he did because he already had food in his cell. Id. at 1. He denies participating in a hunger

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strike and states that he has a constitutional right to eat food from the inmate store and to not go

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to the dining hall. Id. at 1-2, 7. He also alleges that Qualls denied him documentation of each

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day the rules violation occurred, thereby violating his due process rights. Id. at 1-2.

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Plaintiff next alleges that defendant Harper violated his rights when he found plaintiff

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guilty of the disciplinary infraction, despite being fully aware that Qualls had not witnessed the

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incident. Id. at 2. He further alleges that Harper “conspired in the retaliation with Sgt. D. Qualls”

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when he found plaintiff guilty of the rules violation and that Harper did not provide him with a

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full copy of the evidence against him and conducted the disciplinary hearing without a complete

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report. Id.
Defendant Lee allegedly violated plaintiff’s rights when he upheld the guilty finding

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despite plaintiff advising him that the RVR was “false” and plaintiff had not participated in a

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hunger strike, that plaintiff’s due process rights had been violated at the hearing, and that

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defendant Qualls was not allowed to write the report. Id. at 2-3. Plaintiff also alleges that

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defendant Lee found petitioner guilty without reviewing a complete report and that Lee conspired

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with the other defendants by finding him guilty. Id. Plaintiff proceeded to submit a third-level

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appeal, which was handled by defendant Lopez, who also ignored the alleged due process

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violations and conspired with the other defendants by finding him guilty without proper

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documentation. Id. at 3-4. Plaintiff also alleges he was denied witnesses, an investigative

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employee, and staff assistance. Id. at 3, 8. Since plaintiff states that the “senior hearing officer

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lied and said [he] didn’t ask for any” (id. at 8), it appears this allegation pertains to defendant

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Harper or defendant Lee.

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Plaintiff alleges that defendant Foulk violated his rights when he reviewed the RVR and

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failed to correct the due process violations. Id. at 5. He also alleges that defendants Lee, Lopez,

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and Foulk violated his rights in their supervisory capacities because they are responsible for

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“promulgating, supervising the promulgation of, implementing, supervising the implementation

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of, monitoring, supervising the monitoring of compliance with, enforcing and/or supervising the

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enforcement of policies and procedures” related to the rules violation process. Id. at 4-6.
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As relief, plaintiff seeks removal of the RVR from his case file, that his “score sheet” be

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reduced by “20 points,” that defendants be put on probation, that the court restore “61 days lost

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credit,” and that he be “put up for CSP-Old Folsom transfer.” Id. at 10. Plaintiff does not appear

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to seek monetary damages. Id.

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III.

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Heck Bar
In his second amended complaint, plaintiff alleges that he lost sixty-one days of good-time

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credits as a result of the disciplinary at issue in this case and seeks their restoration. ECF No. 11

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at 10, 20. State prisoners may not challenge the fact or duration of their confinement in a section

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1983 action and their sole remedy lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74,

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78 (2005). Often referred to as the favorable termination rule or the Heck bar,1 this limitation

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applies whenever state prisoners “seek to invalidate the duration of their confinement—either

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directly through an injunction compelling speedier release or indirectly through a judicial

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determination that necessarily implies the unlawfulness of the State’s custody.” Id. at 81

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(emphasis in original). Accordingly, “a state prisoner’s § 1983 action is barred (absent prior

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invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the

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prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in

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that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. at

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81-82. The favorable termination rule applies to prison disciplinary proceedings if those

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proceedings resulted in the loss of good-time or behavior credits. Edwards v. Balisok, 520 U.S.

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641, 646-48 (1997).

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Here, plaintiff alleges that defendant Qualls falsified the report against him in retaliation

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and that the other defendants conspired with Qualls to violate his rights by failing to consider

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evidence and witnesses that would exonerate him. A favorable finding on these claims would

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necessarily imply the invalidity of the disputed disciplinary finding. There is no allegation that

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plaintiff’s disciplinary conviction has been reversed, expunged, or otherwise invalidated. Where

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the success of the prisoner’s action would decrease the length of his sentence, which appears to be

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See Heck v. Humphrey, 512 U.S. 477 (1994).
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the case here, a § 1983 claim is not cognizable until the disciplinary conviction has been

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invalidated. Edwards, 520 U.S. at 648.

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It appears that plaintiff’s success in this action on his claims of retaliation arising out of

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the allegedly false RVR and his claims of due process violations and conspiracy arising out of the

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disciplinary proceedings would necessarily invalidate the result of the disciplinary hearing.

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However, plaintiff will be given an opportunity to amend the complaint to clarify the issue. If

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plaintiff chooses to amend his complaint, he must address (1) whether the disciplinary conviction

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at issue has been overturned or invalidated and (2) if the disciplinary has not been overturned or

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invalidated, whether a decision overturning the disciplinary would affect the length of his

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sentence. If the disciplinary conviction has not been invalidated and a decision overturning it

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would affect the length of plaintiff’s sentence, or if plaintiff fails to address these issues, the

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entire complaint will be dismissed without leave to amend.

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IV.

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Failure to State a Claim
Independent of the Heck bar, plaintiff’s allegations fail to state a claim against the

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defendants and will be dismissed for the reasons set forth below. If, in his amended complaint,

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plaintiff is able to overcome the Heck bar, he must also address the deficiencies set forth below if

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he is to proceed with his claims.

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A.

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With respect to plaintiff’s claims against defendant Qualls, prisoners do not have a right

Due Process

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to be free from false accusations of misconduct, so the mere falsification of a report does not give

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rise to a claim under § 1983. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (“Sprouse’s

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claims based on the falsity of the charges and the impropriety of Babcock’s involvement in the

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grievance procedure, standing alone, do not state constitutional claims.”); Freeman v. Rideout,

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808 F.2d 949, 951 (2nd Cir. 1986) (“The prison inmate has no constitutionally guaranteed

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immunity from being falsely or wrongly accused of conduct which may result in the deprivation

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of a protected liberty interest.”); Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (“[A]n

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allegation that a prison guard planted false evidence which implicates an inmate in a disciplinary

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infraction fails to state a claim for which relief can be granted where the procedural due process
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protections . . . are provided.”). Plaintiff’s allegation that defendant Qualls violated his due

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process rights by falsifying the RVR therefore fails to state a claim.

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As for plaintiff’s claims that he was denied appropriate due process throughout the

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proceedings on his rules violation, “[p]rison disciplinary proceedings are not part of a criminal

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prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”

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Wolff v. McDonnell, 418 U.S. 539, 556 (1974). An inmate subject to disciplinary sanctions that

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include the loss of good time credits must receive (1) twenty-four-hour advanced written notice of

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the charges against him, id. at 563-64; (2) a written statement by the fact finder as to the evidence

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relied on and the reasons for the action, id. at 564-65; (3) an opportunity to call witnesses and

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present documentary evidence where doing so “will not be unduly hazardous to institutional

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safety or correctional goals,” id. at 566; (4) assistance at the hearing if he is illiterate or if the

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matter is complex, id. at 570; and (5) a sufficiently impartial fact finder, id. at 570-71. A finding

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of guilt must also be “supported by some evidence in the record.” Superintendent v. Hill,

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472 U.S. 445, 454 (1985).

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Plaintiff’s allegations fail to state a claim for relief. First, he does not allege that he did

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not receive twenty-four-hour advance written notice of the charges prior to the hearing, and the

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attached RVR2 indicates that he was provided a copy of the RVR and the 128-B supplement3 on

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July 21, 2013, and a copy of the incident report on July 30, 2013. ECF No. 11 at 14. Plaintiff

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does appear to claim he should have been notified of each violation as it happened (id. at 2),

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however that is not what due process requires.

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Next, although plaintiff alleges that he was not provided with a full report, it appears that

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he is referring to a full report on who else was involved in the hunger strike. Id. at 1. He does not

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allege that he did not receive a written statement by the fact finder as to the evidence relied on

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and the reasons for the action, and even if he did, the copies of the decision that he attached to the

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The court may consider facts established by exhibits attached to the complaint.
Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
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The 128-B supplement is a form that indicates that plaintiff informed staff that he was an
active participant in the hunger strike. See ECF No. 17.
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complaint would disprove the allegation. Id. at 20-22. To the extent plaintiff alleges that he did

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not receive copies of all the evidence relied on at the hearing, this also fails to state a claim

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because due process requires that he be provided a statement of what evidence was relied on, not

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that he be provided with copies of all the evidence relied on. Moreover, it appears from

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plaintiff’s allegations that the hearing officer decided his case without a complete report of who

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was involved in the hunger strike. This means the complete report was not evidence relied on at

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the hearing and plaintiff would not be entitled to it even if he was entitled to a copy of every piece

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of evidence relied on.

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Though plaintiff alleges that he was denied the ability to call witnesses, that right is

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subject to limitation, and it is not clear from the complaint who plaintiff would have called and

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what impact, if any, the witnesses would have had on the outcome of the disciplinary hearing.

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Plaintiff alleges that he was denied an investigative employee and staff assistance. Id. at

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3. However, due process requires a prisoner only be provided staff assistance if he is illiterate or

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the matter is complex. Plaintiff does not claim to be illiterate or otherwise impaired, nor does he

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put forth facts that would indicate that the disciplinary issue was complex.

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Plaintiff offers nothing that would establish the fact finder was not sufficiently impartial.

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It does not appear that defendant Harper was involved in the rules violation, and plaintiff’s

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conclusory allegations of a conspiracy are insufficient to establish a lack of impartiality.

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Finally, based on the documentation provided by plaintiff, even if the court assumes that

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the report written by defendant Qualls was false and should have been disregarded, it appears that

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there was other evidence on the record from which the fact finder could have found plaintiff

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guilty. See id. at 16, 17, 21.

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To the extent plaintiff alleges defendants Lee, Lopez, and Foulk violated his due process

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rights by simply denying his disciplinary appeal, he fails to state a claim. “[I]nmates lack a

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separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza,

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334 F.3d 805, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)

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(“[T]here is no legitimate claim of entitlement to a grievance procedure.”). Accordingly, the

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prison grievance procedure does not confer any substantive constitutional rights upon inmates and
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actions in reviewing and denying inmate appeals generally do not serve as a basis for liability

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under section 1983. Id.; George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (“Ruling against a

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prisoner on an administrative complaint does not cause or contribute to the violation.”).

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However, because prison administrators cannot willfully turn a blind eye to constitutional

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violations being committed by subordinates, an individual who denies an inmate appeal and who

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had the authority and opportunity to prevent an ongoing constitutional violation could potentially

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be subject to liability if the individual knew about an existing or impending violation and failed to

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prevent it. Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006). Plaintiff’s allegations are

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insufficient to establish that Lee, Lopez, or Foulk knew about ongoing or impending violations

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that they had the ability to prevent.

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B.

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Although plaintiff cannot state a due process claim for the allegedly false disciplinary,

Retaliation

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“prisoners may still base retaliation claims on harms that would not raise due process concerns.”

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Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997). Inmates have a right to be free from the

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filing of false disciplinary charges in retaliation for the exercise of constitutionally protected

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rights. Watison v. Carter, 668 F.3d 1108, 1115 (9th Cir. 2012); Pratt v. Rowland, 65 F.3d 802,

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806 (9th Cir. 1995). Allegations of retaliation against a prisoner’s First Amendment rights to

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speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778

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F.2d 527, 531-32 (9th Cir. 1985); see also Pratt, 65 F.3d at 806. “Within the prison context, a

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viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a

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state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected

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conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and

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(5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson,

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408 F.3d 559, 567-68 (9th Cir. 2005).

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Though participating in a hunger strike can, in certain circumstances, constitute activity

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protected by the First Amendment, the basis of plaintiff’s claim is that he was not participating in

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a hunger strike, but was written up for being part of a mass hunger strike in retaliation for not

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“accept[ing] a prison tray due to having food in [his] cell.” ECF No. 11 at 1. He further states
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that he “has the right not to eat in the ‘chow hall’ dining room” and to “eat canteen.” Id. at 7.

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Plaintiff’s preference for food from the inmate store and to eat in his cell is not activity protected

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by the First Amendment, and he provides no facts from which it can be inferred he was

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participating in some other protected activity. Without a claim that he was participating in

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activity protected by the First Amendment, plaintiff fails to state a claim for retaliation.

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Plaintiff’s retaliation claim against the defendants will be dismissed with leave to amend.

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In order to move forward with a First Amendment retaliation claim, any amended complaint must

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include an allegation that he was retaliated against for participating in protected conduct.

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C.

Conspiracy

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A conspiracy claim brought under section 1983 requires proof of “an agreement or

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meeting of the minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.

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2002) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th

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Cir. 1989) (internal quotation marks omitted)), and an actual deprivation of constitutional rights

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as a result of the alleged conspiracy, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting

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Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each

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participant in the conspiracy need not know the exact details of the plan, but each participant must

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at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting

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United Steelworkers, 865 F.2d at 1541). Plaintiff must allege facts with sufficient particularity to

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show an agreement or a meeting of the minds to violate the plaintiff’s constitutional rights.

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Miller v. California, 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum, 866 F.2d at

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1126). The mere statement that defendants “conspired” or acted “in retaliation” is not sufficient

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to state a claim. “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Courts in the Ninth Circuit have required a plaintiff alleging a conspiracy to violate civil

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rights to state specific facts to support the existence of the claimed conspiracy. Olsen v. Idaho

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State Bd. of Med., 363 F.3d 916, 929 (9th Cir. 2004) (discussing conspiracy claim under § 1985);

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Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (“To state a claim for conspiracy to

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violate one’s constitutional rights under § 1983, the plaintiff must state specific facts to support

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the existence of the claimed conspiracy.”).

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Here, plaintiff’s allegations of a conspiracy fail to state a claim upon which relief may be

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granted. There is absolutely no indication of any agreement between any of the defendants.

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Mere joint employment by the California Department of Corrections and Rehabilitation and the

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conclusory allegation that the denial of plaintiff’s appeals was the result of a conspiracy is

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insufficient to establish the common objective required for a conspiracy.

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D.

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The Civil Rights Act under which this action was filed provides as follows:

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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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Supervisory Liability

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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.”) (citing Rizzo v. Goode, 423 U.S. 362,

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370-71 (1976)). “A person ‘subjects’ another to the deprivation of a constitutional right, within

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the meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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“There is no respondeat superior liability under § 1983.” Taylor v List, 880 F.2d 1040,

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1045 (9th Cir. 1989). “A defendant may be held liable as a supervisor under § 1983 if there exists

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either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional violation.”

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See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (citation and internal quotation marks

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omitted). A supervisor may be liable for the constitutional violations of his subordinates if he

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“knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. Vague and

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conclusory allegations concerning the involvement of official personnel in civil rights violations
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are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint

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devoid of specific factual allegations of personal participation is insufficient). Supervisory

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liability may exist without any personal participation if the official implemented “a policy so

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deficient that the policy itself is a repudiation of the constitutional rights and is the moving force

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of the constitutional violation.” Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.

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1991).

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Plaintiff’s allegations that defendants Lee, Lopez, and Foulk violated his rights in their

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supervisory capacities because they are responsible for “promulgating, supervising the

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promulgation of, implementing, supervising the implementation of, monitoring, supervising the

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monitoring of compliance with, enforcing and/or supervising the enforcement of policies and

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procedures” related to the rules violation process fail to state a claim. Id. at 4-6. Plaintiff’s

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general allegations that defendants are liable simply because of their supervisory positions is

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insufficient to allege the necessary personal involvement, and his factual allegations regarding the

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actions of Lee, Lopez, and Foulk show defendants becoming aware of the alleged violations after

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they occurred. Plaintiff alleges that these defendants allowed the violations to occur because they

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did not overturn his rules violation, but there is nothing that would suggest that they were aware

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of the violations before they occurred, as they were occurring, or at any time such that they could

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have intervened and prevented the violations from happening in the first place. Plaintiff’s

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allegations that defendants could have taken steps to address the violations after the fact are

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insufficient to state a claim for supervisory liability.

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To the extent plaintiff may be trying to establish supervisory liability through the

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implementation of policy, he does not offer anything that would suggest the current policy is

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deficient. Instead, his argument is that defendants failed to follow policy.

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E.

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To the extent plaintiff seeks prospective injunctive relief he may name Warden Foulk as a

Official Capacity

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defendant in his official capacity. Hafer v. Melo, 502 U.S. 21, 27 (1991). However, because a

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suit against an official in his or her official capacity is a suit against the state, a practice, policy or

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procedure of the state must be at issue in a claim for official capacity injunctive relief. Id. at 25.
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It is currently impossible to tell whether the warden is an appropriately named official because it

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is not clear whether the injunctive relief plaintiff seeks involves an allegedly unconstitutional

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state practice, policy or procedure. Plaintiff does not allege that the disciplinary policy is

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unconstitutional and does not put forth sufficient facts to allege a practice of allowing

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unconstitutional conduct in the execution of the disciplinary policy.

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V.

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Leave to Amend
The court will provide plaintiff an opportunity to file a third amended complaint to

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attempt to cure the deficiencies identified above. If plaintiff chooses to file a third amended

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complaint, he must demonstrate how the conditions about which he complains resulted in a

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deprivation of his constitutional rights. Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the

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complaint must allege in specific terms how each named defendant is involved. Id. There can be

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no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a

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defendant’s actions and the claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th

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Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and

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conclusory allegations of official participation in civil rights violations are not sufficient. Ivey,

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673 F.2d at 268.

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make his third amended complaint complete. Local Rule 220 requires that an amended complaint

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be complete in itself without reference to any prior pleading. This is because, as a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files a third amended complaint, the original pleading no longer serves

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any function in the case. Therefore, in a third amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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VI.

Conclusion

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s second amended complaint (ECF No. 11) is dismissed; and

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2. Plaintiff is granted thirty days from the date of service of this order to file a third

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules
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of Civil Procedure, and the Local Rules of Practice; the third amended complaint must bear the

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docket number assigned this case and must be labeled “Third Amended Complaint”; plaintiff

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must file an original and two copies of the third amended complaint; failure to file a third

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amended complaint in accordance with this order will result in dismissal of this action.

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DATED: August 4, 2015

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22
23
24
25
26
27
28
13