Tunstall v. Bick et al
Filing
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ORDER signed by Magistrate Judge Dennis M. Cota on 7/22/2020 ORDERING that Plaintiff may withdraw his 4th 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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ROBERT WILLIAM TUNSTALL, JR.,
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Plaintiff,
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No. 2:16-CV-2604-KJM-DMC-P
v.
ORDER
JOSEPH BICK, et al.,
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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
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42 U.S.C. § 1983. Pending before the Court is plaintiff’s fourth amended complaint (ECF No.
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68).
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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
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
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1172, 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. BACKGROUND
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Plaintiff filed his original complaint on November 1, 2016. See ECF No. 1.
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Plaintiff has amended this complaint four times by order of the court. See ECF No. 26; ECF No.
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31; ECF No. 571; ECF No. 68. Plaintiff states he has extreme difficulty reading, writing, and
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comprehending spoken language due to a developmental disability and extensive brain damage.
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See ECF No. 68, pgs. 1-2. As a result, plaintiff has faced great difficulty while trying to
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understand the Court’s previous explanations of why his claims were deficient. Id.
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The Court issued an order instructing plaintiff to file an amended complaint due to
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deficiencies in plaintiff’s third amended complaint. See ECF No. 60. The Court advised plaintiff
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that his First Amendment access to court claim and Fourteenth Amendment due process claim
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regarding false charges could pass screening if amended. See ECF No. 60, pgs. 10-11. Plaintiff
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otherwise stated a cognizable Eighth Amendment medical care claim, Fourteenth Amendment
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due process claim, First Amendment retaliation claim, Eighth Amendment excessive force claim,
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and Americans with Disabilities Act violation. See ECF No. 60, pgs. 4-11. The Court also
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advised plaintiff that his Fifth Amendment Miranda rights claim, Fourteenth Amendment prison
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grievance claim, and Eighth Amendment verbal harassment claim could not pass screening even
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if plaintiff attempted to amend the complaint. Id.
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The docket erroneously marks ECF No. 57 as plaintiff’s second amended
complaint. It is plaintiff’s third amended complaint.
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II. DISCUSSION
An amended complaint supersedes the original complaint. See Ferdik v. Bonzelet,
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963 F.2d 1258, 1262 (9th Cir. 1992). Because plaintiff amended his third amended complaint,
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the Court cannot refer to the prior pleading to make plaintiff’s amended complaint complete. See
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Local Rule 220. An amended complaint must be complete in itself without reference to any prior
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pleading. See id.
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Plaintiff’s present fourth amended complaint is far more disorganized and does not
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rectify the defects in plaintiff’s third amended complaint which were amendable to rectification.
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Plaintiff’s present complaint does not address plaintiff’s First Amendment access to court claim.
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Plaintiff’s amended complaint also does not remedy the issues with plaintiff’s previous
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Fourteenth Amendment false accusation claims because plaintiff only offers one conclusory
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statement that defendant Rogers made false allegations. See ECF No. 60, pg. 7.
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In addition, many of plaintiff’s previously cognizable claims are no longer alleged
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with sufficient detail to pass screening. For example, plaintiff’s third amended complaint states a
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cognizable Eighth Amendment excessive force claim against “Asian Nurse Doe Defendant” by
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claiming that “Asian Nurse” dropped her left knee on plaintiff’s hand, shoved her right knee on
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plaintiff’s abdomen, and threatened to push plaintiff off a gurney. See ECF No. 60, pg. 4. In his
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present complaint, plaintiff only makes the conclusory assertions that “Asian Nurse” assaulted
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him and that she is a terrorist. See ECF No. 68, pgs. 7-8. Plaintiff’s fourth amended complaint
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contains numerous similar instances where plaintiff’s new complaint does not allege sufficient
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factual information to state a cognizable claim. Very few, if any, of plaintiff’s claims would pass
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screening in his fourth amended complaint.
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Because plaintiff has not been able to amend the defects in his previous
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complaints, and because plaintiff’s third amended complaint stated some cognizable claims, the
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Court will provide plaintiff an opportunity to withdraw his current fourth amended complaint, in
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which event the Court will direct service of the third amended complaint as to the cognizable
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claims previously identified. If plaintiff elects not to withdraw the fourth amended complaint, the
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Court will issue findings and recommendations that the action be dismissed for failure to state a
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claim upon which relief can be granted.
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III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that plaintiff may withdraw his Fourth
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Amended Complaint within 30 days of the date of service of this order, in which event this action
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shall proceed on plaintiff’s third amended complaint filed on June 3, 2019. Absent plaintiff’s
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withdrawal of the Fourth Amended Complaint, the Court will issue Findings and
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Recommendations relative to the defects in that pleading, and Plaintiff will be provided an
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opportunity to object thereto.
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Dated: July 22, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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