Wilkins v. Gonzalez, et al.

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 06/02/16 vacating 11 FINDINGS AND RECOMMENDATIONS. Plaintiff is granted thirty days to file a second amended complaint raising a retaliation claim.Plaintiffs motion to present additional evidence 14 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEENAN WILKINS,

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No. 2: 16-cv-0347 KJM KJN P

Plaintiff,
v.

ORDER

PAUL GONZALEZ, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On April 4, 2016, the undersigned recommended that this action be

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dismissed. (ECF No. 11.) For the reasons stated herein, the findings and recommendations are

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vacated, and plaintiff is granted leave to file a second amended complaint.

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The April 4, 2016 findings and recommendations addressed plaintiff’s first amended

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complaint. In the first amended complaint, plaintiff alleged that he was being denied contact

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visits with his minor children pursuant to Cal. Code of Regs. Tit. 15, § 3173.1. Plaintiff alleged

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that the denial of contact visits violated the Eighth Amendment, his right to equal protection and

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due process. In the findings and recommendations, the undersigned found that plaintiff failed to

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state potentially colorable claims for violation of these constitutional rights.

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In his objections, plaintiff raises a new claim. In particular, plaintiff alleges that prison
officials denied him contact visits with his children, without notice, one month after plaintiff
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reported staff assaults. These allegations suggest that plaintiff is raising a claim that prison

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officials denied him contact visits with his children in retaliation for reporting staff assaults.

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Based on the new allegations raised in plaintiff’s objections, the findings and recommendations

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are vacated. Plaintiff is granted leave to file a second amended complaint raising his retaliation

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claim.

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). If plaintiff intends to assert a

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retaliation claim, he must specifically identify the protected conduct at issue and plead that the

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allegedly adverse action was taken “because of” that conduct.

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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 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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If plaintiff again raises claims alleging that the denial of contact visits with his children

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violates the Eighth Amendment, his right to equal protection and due process, the undersigned

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will again recommend that these claims be dismissed.

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On May 24, 2016, plaintiff filed a motion to present additional evidence in support of his

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claims. (ECF No. 14.) Because the findings and recommendations are vacated, plaintiff’s motion

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to submit additional evidence is denied as unnecessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The April 4, 2016 findings and recommendations (ECF No. 11) are vacated;

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2. Plaintiff is granted thirty days to file a second amended complaint raising a retaliation

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claim;
3. Plaintiff’s motion to present additional evidence (ECF No. 14) is denied.
Dated: June 2, 2016

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