Bowman (aka Salaam) v. Mundey et al

Filing 12

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/19/2017 DISMISSING the amended complaint with leave to amend within 30 days. The Clerk shall send plaintiff the form for filing civil rights actions.(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 JERRY BOWMAN, aka ABUDLLAH MUHAMMED NAYM SALAAM, Plaintiff, 13 14 15 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. MUNDEY, et al., Defendants. 16 17 No. 2:16-cv-0246-EFB P Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He filed his initial complaint on February 8, 2016. ECF No. 1. After review of 19 that pleading, the court dismissed it as illegible. ECF No. 7 at 2. Plaintiff was afforded an 20 opportunity to amend and he has done so. ECF No. 10. That amended complaint is before the 21 court for screening. 22 I. Screening Requirement and Standards 23 Federal courts must engage in a preliminary screening of cases in which prisoners seek 24 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 26 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 27 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 28 relief.” Id. § 1915A(b). 1 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 7 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 8 U.S. 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 12 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 13 678. 14 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 18 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 19 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 20 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 21 II. 22 Plaintiff’s amended complaint is deficient. Crucially, the pleading does not stand on its Screening Order 23 own and, rather than explicitly articulating the alleged violations of plaintiff’s rights, makes 24 repeated references to the original, illegible complaint. ECF No. 10 at 3. It is well settled that an 25 amended complaint entirely supersedes the original. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 26 (9th Cir. 2012) (en banc). Further, this District’s local rules state that every pleading must be 27 “complete in itself without reference to the prior or superseded pleading,” and “[n]o pleading 28 ///// 2 1 shall be deemed amended or supplemented until this Rule has been complied with.” Local Rule 2 220. Accordingly, the amended complaint must be dismissed. 3 Plaintiff will have a final opportunity to amend his complaint. Lopez v. Smith, 203 F.3d 4 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity 5 to amend to correct any deficiency in their complaints). Should plaintiff choose to file an 6 amended complaint, the amended complaint shall clearly set forth the claims and allegations 7 against each defendant. Any amended complaint must cure the deficiencies identified above and 8 also adhere to the following requirements: 9 Any amended complaint must identify as a defendant only persons who personally 10 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 11 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 12 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 13 legally required to do that causes the alleged deprivation). 14 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 15 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 16 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 17 Any amended complaint must be written or typed so that it so that it is complete in itself 18 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 19 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 20 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 21 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 22 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 23 1967)). 24 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 25 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 26 See E.D. Cal. Local Rule 110. 27 ///// 28 ///// 3 1 III. 2 Accordingly, IT IS HEREBY ORDERED that: 3 Summary of Order 1. The amended complaint (ECF No. 10) is dismissed with leave to amend 4 within 30 days. The complaint must bear the docket number assigned to this 5 case and be titled “Second Amended Complaint.” Failure to comply with this 6 order will result in dismissal of this action for failure to prosecute. If plaintiff 7 files a second amended complaint stating a cognizable claim the court will 8 proceed with service of process by the United States Marshal. 9 10 11 2. The Clerk of Court is directed to send plaintiff the form for use in filing civil rights actions in this district. Dated: April 19, 2017. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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