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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY BOWMAN, aka ABUDLLAH
MUHAMMED NAYM SALAAM,
Plaintiff,

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
MUNDEY, et al.,
Defendants.

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No. 2:16-cv-0246-EFB P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He filed his initial complaint on February 8, 2016. ECF No. 1. After review of

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that pleading, the court dismissed it as illegible. ECF No. 7 at 2. Plaintiff was afforded an

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opportunity to amend and he has done so. ECF No. 10. That amended complaint is before the

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court for screening.

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I.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).
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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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II.

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Plaintiff’s amended complaint is deficient. Crucially, the pleading does not stand on its

Screening Order

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own and, rather than explicitly articulating the alleged violations of plaintiff’s rights, makes

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repeated references to the original, illegible complaint. ECF No. 10 at 3. It is well settled that an

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amended complaint entirely supersedes the original. Lacey v. Maricopa Cnty., 693 F.3d 896, 927

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(9th Cir. 2012) (en banc). Further, this District’s local rules state that every pleading must be

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“complete in itself without reference to the prior or superseded pleading,” and “[n]o pleading

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shall be deemed amended or supplemented until this Rule has been complied with.” Local Rule

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220. Accordingly, the amended complaint must be dismissed.

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Plaintiff will have a final opportunity to amend his complaint. Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity

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to amend to correct any deficiency in their complaints). Should plaintiff choose to file an

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amended complaint, the amended complaint shall clearly set forth the claims and allegations

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against each defendant. Any amended complaint must cure the deficiencies identified above and

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also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. Local Rule 110.

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III.

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Accordingly, IT IS HEREBY ORDERED that:

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Summary of Order

1.

The amended complaint (ECF No. 10) is dismissed with leave to amend

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within 30 days. The complaint must bear the docket number assigned to this

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case and be titled “Second Amended Complaint.” Failure to comply with this

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order will result in dismissal of this action for failure to prosecute. If plaintiff

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files a second amended complaint stating a cognizable claim the court will

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proceed with service of process by the United States Marshal.

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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.

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