Koch v. Bahaduer
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 5/12/2017 DISMISSING CASE WITH LEAVE TO AMEND. Plaintiff to file amended complaint within 30 days of the date of service of this order. (Henshaw, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARK FRANCIS KOCH,
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No. 2:16-cv-1162-MCE-CMK-P
Plaintiff,
vs.
ORDER
BAHADUER, et al.
Defendants.
/
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Plaintiff, a former prisoner proceeding pro se, brings this civil rights action
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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 5).
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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 his complaint, plaintiff alleges that he has been trying to get treatment for
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hernias since May 2015. In January 2016, he started wetting the bed due to his medical
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condition. He was then assaulted by an officer and sergeant. This attack began when he started
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wetting the bed at 1:00 a.m., then went to the bathroom/shower to clean up. Defendant Bahaduer
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pointed a light at plaintiff’s genitals and would not move it. Plaintiff then went back to his dorm,
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until he was called to talk to the sergeant. He was told not to shower again. Plaintiff told the
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officers he would not have to if medical would treat his problem. Defendant Higgons then
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charged plaintiff, pushed him, and hit him in the side, and yelled at him. Defendant Higgons told
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plaintiff to return to his dorm, but then ran after plaintiff, yelling, pushing and hitting plaintiff
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with his fist.
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II. DISCUSSION
There are several defects in plaintiff’s complaint. First, to state a claim under 42
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U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions of the
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named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S.
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658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the
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deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act,
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participates in another's affirmative acts, or omits to perform an act which he is legally required
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to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,
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743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official
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personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d
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266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual
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defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d
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628, 634 (9th Cir. 1988).
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Here, it appears plaintiff is upset that he has not received treatment for his medical
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condition. While the lack of medical treatment appears to be simply background information, if
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he is trying to state a claim for denial of medical treatment, he fails to allege sufficient facts and
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fails to identify any defendants responsible for his treatment, or lack thereof. Therefore, the court
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finds no viable claim for denial of medical treatment. In addition, as the lack of treatment is
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unrelated to the physical assault claim, if it is plaintiff’s intention to raise such a claim, his
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medical treatment claim would be properly raised in a separate action, not this one.
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In addition, plaintiff names both the California Health Care Facility and the
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California Department of Corrections and Rehabilitation as defendants to this action. However,
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the Eleventh Amendment prohibits federal courts from hearing suits brought against a state both
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by its own citizens, as well as by citizens of other states. See Brooks v. Sulphur Springs Valley
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Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition extends to suits against states
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themselves, and to suits against state agencies. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248
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(9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A state’s
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agency responsible for incarceration and correction of prisoners is a state agency for purposes of
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the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Hale v.
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Arizona, 993 F.2d 1387, 1398-99 (9th cir. 1993) (en banc). It does not appear that plaintiff
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actually intended to name either of these entities as defendants, but rather identified them as the
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location where the defendants work and he was housed. As these two defendants are protected
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by the Eleventh Amendment, plaintiff cannot maintain an action against them.
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As to the two individual defendants, it appears plaintiff’s main claim is use of
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excessive force. However, to the extent plaintiff is attempting to state a claim for harassment or
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verbal abuse, no such claim exists. The treatment a prisoner receives in prison and the conditions
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under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which
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prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993);
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Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and
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idealistic concepts of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble,
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429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See
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Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide
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prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint
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v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth
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Amendment only when two requirements are met: (1) objectively, the official’s act or omission
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must be so serious such that it results in the denial of the minimal civilized measure of life’s
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necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly
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for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth
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Amendment, a prison official must have a “sufficiently culpable mind.” See id.
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Allegations of verbal harassment do not state a claim under the Eighth
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Amendment unless it is alleged that the harassment was “calculated to . . . cause [the prisoner]
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psychological damage.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); see also
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Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998).
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In addition, the prisoner must show that the verbal comments were unusually gross, even for a
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prison setting, and that he was in fact psychologically damaged as a result of the comments.
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See Keenan, 83 F.3d at 1092. This includes verbal harassment of a sexual nature, and exposure.
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Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004).
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Plaintiff alleges defendant Bahaduer harassed him, verbally and by use of her
light. However, such harassment is insufficient to state a claim. Similarly, to the extent plaintiff
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attempts to state a claim against defendant Higgons for yelling at him or for the obscenities used,
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plaintiff cannot state a claim. While the alleged actions may certainly be inappropriate, they do
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not rise to the level of a constitutional violation and any such claims must be dismissed.
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Finally, as to the claim against defendant Higgons for use of force, plaintiff fails
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to provide sufficient facts to state a claim. This defect, however, may be curable and plaintiff
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will be provided an opportunity to file an amended complaint against defendant Higgons for use
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of excessive force. As stated above, a prison official violates the Eighth Amendment only when
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two requirements are met: (1) objectively, the official’s act or omission must be so serious such
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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.
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When prison officials stand accused of using excessive force, the core judicial
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inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or
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maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);
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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as
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opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,
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is applied to excessive force claims because prison officials generally do not have time to reflect
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on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475
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U.S. at 320-21. In determining whether force was excessive, the court considers the following
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factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship
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between the need for force and the amount of force used; (4) the nature of the threat reasonably
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perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.
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See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force
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was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.
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1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,
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because the use of force relates to the prison’s legitimate penological interest in maintaining
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security and order, the court must be deferential to the conduct of prison officials. See Whitley,
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475 U.S. at 321-22.
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Plaintiff’s allegations as to the use of force appear to be limited to being pushed
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and struck once with a fist. At first blush, such actions, while again inappropriate, do not appear
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to be “so serious such that it results in the denial of the minimal civilized measure of life’s
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necessities.” As the standard for a violation of the Eighth Amendment is relatively high, the
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allegations in plaintiff’s complaint do not reach the necessary severity. However, since there
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may be additional facts that plaintiff can assert that would state a claim, he will be given an
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opportunity to amend.
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III. 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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Because some of the defects identified in this order cannot be cured by
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amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now
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has the following choices: (1) plaintiff may file an amended complaint which does not allege the
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claims identified herein as incurable, in which case such claims will be deemed abandoned and
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the court will address the remaining claims; or (2) plaintiff may file an amended complaint which
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continues to allege claims identified as incurable, in which case the court will issue findings and
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recommendations that such claims be dismissed from this action, as well as such other orders
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and/or findings and recommendations as may be necessary to address the remaining claims.
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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. Plaintiff is also warned that a complaint which fails to comply
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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).
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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed with leave to amend; and
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Plaintiff shall file an amended complaint within 30 days of the date of
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service of this order.
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DATED: May 12, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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