Johnson v. Fox
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 11/06/17 ORDERING the claims raised in plaintiff's 7/28 and 8/01/17 filings are construed as a second amended complaint. The second amended complaint is dismissed. Within 30 days of the date of this order, plaintiff may file a third amended complaint on the complaint form provided with this order. The clerk of the court shall send plaintiff a copy of the prisoner complaint form used in this district. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HERBERT JOHNSON,
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No. 2:16-cv-2492 JAM DB P
Plaintiff,
v.
ORDER
ROBERT W. FOX,
Defendant.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action
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under 42 U.S.C. § 1983. Before the court are plaintiff’s recent filings, which appear to be an
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attempt to state claims as a second amended complaint. Below, the court screens these new
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filings and finds that plaintiff has failed to state any claims cognizable under § 1983. The court
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will provide plaintiff one final opportunity to file an amended complaint.
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BACKGROUND
Plaintiff filed his original complaint here on October 7, 2016. Shortly thereafter, he filed a
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first amended complaint and multiple motions for various things, including amending his
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complaint and for injunctions to stop harassment. In his first amended complaint, plaintiff
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appeared to be alleging that he was denied yard time by defendants Powell and Berlin, that he
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was written up for refusing to take a COMPAS test by defendant Berlin, and that defendant Haile
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violated his Eighth Amendment rights by sending him to physical therapy for his chronic knee
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pain. (ECF No. 8.)
On screening, the court found plaintiff’s complaint vague and that it stated no cognizable
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claims. The court provided plaintiff the legal standards for alleging an Eighth Amendment claim
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regarding the conditions of his confinement, informed plaintiff that his allegations regarding the
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COMPAS test did not amount to a constitutional violation, and advised plaintiff about the
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requirements for exhausting his administrative remedies before bringing a suit in this court. The
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court then instructed plaintiff on filing an amended complaint and provided him with a copy of
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the prisoner complaint form used in this district. (ECF No. 26.)
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In May 2017, plaintiff filed a document indicating he wished to close this case. After the
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undersigned recommended dismissal, plaintiff filed objections from which the court determined
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he did not, in fact, wish to dismiss this case. In an order filed June 30, 2017, plaintiff was given
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an additional sixty days to file an amended complaint based on his assertions that he had not had
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access to his legal property during a period of time that he was in segregated housing. (ECF Nos.
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32, 34.) At that time, plaintiff was again provided a copy of the form for prisoner complaints that
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is used in this district.
On July 28, 2017, plaintiff filed a document entitled simply “Claim for Relief.” (ECF No.
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35.) On August 1, plaintiff filed a second document entitled “Pleading to Judge.” (ECF No. 36.)
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Because it appears plaintiff is attempting to allege claims in these documents, the court liberally
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construes these filings as plaintiff’s second amended complaint and screens them below.
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SCREENING
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I.
Legal Standards
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The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or an 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 the prisoner has raised claims
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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28
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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 Franklin, 745 F.2d at 1227.
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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
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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 Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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However, in order to survive dismissal for failure to state a claim a complaint must contain
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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550
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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all
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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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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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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. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
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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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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
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their employees under a theory of respondeat superior and, therefore, when a named defendant
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holds a supervisorial position, the causal link between him and the claimed constitutional
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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);
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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations
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concerning the involvement of official personnel in civil rights violations are not sufficient. See
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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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II.
Analysis
A. Allegations of Plaintiff’s Filings
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Plaintiff’s allegations are not clear. He appears to be again asserting unrelated claims and
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has added some entirely new claims. As best the court can determine, in his July 28 filing,
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plaintiff lists a number of things he claims he has been denied, including access to his legal
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property, yard time, a package, a transfer, and ice when it was very hot outside. (ECF No. 35.)
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While plaintiff names a few prison officials in this document, he does not connect those officials
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to the various violations he alleges. In sum, plaintiff does not provide sufficient specificity about
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his claims to permit this court to determine whether he is attempting to allege any claims that he
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may pursue in a § 1983 action.
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In the August 1 filing, plaintiff first asks for a copy of the in forma pauperis application.
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(ECF No. 36.) Plaintiff is advised that the court has already granted him in forma pauperis status.
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He no longer needs to file additional paperwork on that issue. Plaintiff also indicates that he
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wants help getting out of administrative segregation (“ad seg”).
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Plaintiff next tells an apparently unrelated story about informing Sergeant Dayrif about his
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cellmate, Mr. Hardy, but Dayrif failed to take any action and plaintiff was placed back in the cell
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with Hardy. As a result, on February 7, 2017, Hardy beat plaintiff, who suffered injuries to his
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knees and head. Plaintiff states that he wants a transfer out of the California Medical Facility
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(“CMF”). (Id. at 2, 4.)
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Plaintiff again describes attempts by “CCI Berlin” to make him take the “COMPAS test.1”
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He appears to feel he is being singled out by being forced to take the test. (Id. at 2.)
Plaintiff next appears to quote an August 2014 document entitled “Non-Disciplinary
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Segregation Processing Procedure for Mental Health Service Delivery System Inmates.” (ECF
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No. 36 at 3.) It specifies that Mental Health Service Delivery System (“MHSDS”) participants
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who are placed in ad seg for non-disciplinary reasons (“NDS” prisoners) should be removed
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within 72 hours. Plaintiff contends Associate Warden C. Tileston informed him that he is not
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being classified as NDS because he failed to cooperate with the investigation into the beating by
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his cell-mate. (Id. at 2, 3, 5.)
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He again states that he is being denied a transfer and appears to attribute that to his refusal to
take the COMPAS test. (Id. at 3-4.) Plaintiff seeks release from ad seg. (Id. at 4.)
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B. Analysis
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Plaintiff again fails to state any cognizable claims. First, plaintiff is advised that he may not
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raise claims based on his allegations that in February 2017 he was beaten by his cellmate and
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then, according to prison staff, refused to cooperate with an investigation. Plaintiff filed this
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action in October 2016. As plaintiff was informed in the March 2 screening order, he may not
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bring a claim in this court until after he has fully exhausted the grievance procedures with respect
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to that claim. (ECF No. 26 at 5-6.) Because plaintiff filed this suit before he suffered the
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February 2017 beating and subsequent consequences, any claim based on those events may not be
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raised in this case. See 42 U.S.C. § 1997e(a).
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Second, plaintiff has also been informed previously that the facts he is required to take the
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COMPAS test and that he was written up for failing to do so, do not state a cognizable claim under §
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1983. (See Mar. 2, 2017 Order (ECF No. 26 at 5).) In any third amended complaint, plaintiff should
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not again attempt to raise this claim.
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According to the CDCR’s website, COMPAS is “a research-based, risk and needs assessment
tool for criminal justice practitioners to assist them in the placement, supervision, and case
management of offenders in community and secure settings.” See
http://www.cdcr.ca.gov/rehabilitation/docs/FS_COMPAS_Final_4-15-09.pdf .
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Third, claims regarding the deprivation of personal property are not cognizable under § 1983.
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Neither negligent or “unauthorized intentional deprivations of property give rise to a violation of
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the Due Process Clause if the state provides an adequate post-deprivation remedy.” Hudson v.
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Palmer, 468 U.S. 517, 533 n. 14 (1984). A deprivation of property is only potentially cognizable
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if the plaintiff was deprived of his property pursuant to a prison policy or other form of
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authorization. For all other claims, plaintiffs have an adequate postdeprivation remedy under
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California law. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code
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§§ 810–95). Therefore, to the extent plaintiff wishes to bring a claim of deprivation of property,
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he may only do so by showing that he was deprived of his property based on a prison policy or
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other form of authorization.
Fourth, plaintiff may not assert unrelated claims against unrelated parties in the same complaint.
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Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007). A plaintiff may bring a claim against multiple
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defendants so long as (1) the claim arises out of the same transaction or occurrence, or series of
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transactions and occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P.
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20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v.
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Insurance Co. of North America, 623 F.3d 1371, 1375 (9th Cir. 1980). In his current filings,
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plaintiff does not show any relationship between his contentions about his lack of NDS status, his
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placement in ad seg, and his refusal to take the COMPAS test.
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Finally, to the extent plaintiff seeks a transfer to another prison, he is advised that he has no
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constitutional right to incarceration at a particular institution. See Olim v. Wakinekona, 461 U.S.
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238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225-27 (1976); United States v. Brown, 59
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F.3d 102, 105 (9th Cir. 1995) (per curiam).
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CONCLUSION
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Plaintiff will be given one, final opportunity to attempt to state claims that are cognizable
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under § 1983. To permit the court to make that determination, and based on the instructions
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provided to plaintiff above and in prior orders, plaintiff must do the following in an amended
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complaint
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Plaintiff must use the complaint form provided with this order. He should label it “Third
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Amended Complaint.” Plaintiff should carefully fill out the appropriate information on
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that complaint form.
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Plaintiff may only bring claims against more than one defendant if those claims arise out
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of the same events. That means plaintiff may have to choose to raise one claim against
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multiple defendants or to raise more than one claim against one defendant.
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Plaintiff must only include claims that he fully exhausted through the third level of review
before he filed his complaint in this case in October 2016.
To describe a claim, plaintiff must: (a) identify a person, (b) briefly describe what that
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person did or did not do, and (c) explain why that person’s conduct violated plaintiff’s
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constitutional rights.
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Plaintiff’s amended complaint must contain any claim he wishes to bring in this case.
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Plaintiff may not refer back to filings made previously. Once an amended pleading is
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filed, the original pleading no longer serves any function in the case. E.D. Cal. R. 220.
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Accordingly, IT IS HEREBY ORDERED as follows:
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1. The claims raised in plaintiff’s July 28 and August 1, 2017 filings are construed as a
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second amended complaint. The second amended complaint is dismissed.
2. Within thirty days of the date of this order, plaintiff may file a third amended complaint
on the complaint form provided with this order.
3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form
used in this district.
4. Failure to comply with this order will result in a recommendation that this action be
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dismissed.
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Dated: November 6, 2017
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DLB:9
DLB1/prisoner-civil rights/john2492.SAC scrn
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