Tunstall v. Bick et al

Filing 71

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)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT WILLIAM TUNSTALL, JR.,

12

Plaintiff,

13
14

No. 2:16-CV-2604-KJM-DMC-P

v.

ORDER

JOSEPH BICK, et al.,

15

Defendants.

16
17

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

18

42 U.S.C. § 1983. Pending before the Court is plaintiff’s fourth amended complaint (ECF No.

19

68).

20

The Court is required to screen complaints brought by prisoners seeking relief

21

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

22

§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or

23

malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

24

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

25

the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

26

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

27

means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

28

1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
1

1

complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

2

rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

3

with at least some degree of particularity overt acts by specific defendants which support the

4

claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

5

impossible for the Court to conduct the screening required by law when the allegations are vague

6

and conclusory.

7
8

I. BACKGROUND

9

Plaintiff filed his original complaint on November 1, 2016. See ECF No. 1.

10

Plaintiff has amended this complaint four times by order of the court. See ECF No. 26; ECF No.

11

31; ECF No. 571; ECF No. 68. Plaintiff states he has extreme difficulty reading, writing, and

12

comprehending spoken language due to a developmental disability and extensive brain damage.

13

See ECF No. 68, pgs. 1-2. As a result, plaintiff has faced great difficulty while trying to

14

understand the Court’s previous explanations of why his claims were deficient. Id.

15

The Court issued an order instructing plaintiff to file an amended complaint due to

16

deficiencies in plaintiff’s third amended complaint. See ECF No. 60. The Court advised plaintiff

17

that his First Amendment access to court claim and Fourteenth Amendment due process claim

18

regarding false charges could pass screening if amended. See ECF No. 60, pgs. 10-11. Plaintiff

19

otherwise stated a cognizable Eighth Amendment medical care claim, Fourteenth Amendment

20

due process claim, First Amendment retaliation claim, Eighth Amendment excessive force claim,

21

and Americans with Disabilities Act violation. See ECF No. 60, pgs. 4-11. The Court also

22

advised plaintiff that his Fifth Amendment Miranda rights claim, Fourteenth Amendment prison

23

grievance claim, and Eighth Amendment verbal harassment claim could not pass screening even

24

if plaintiff attempted to amend the complaint. Id.

25

///

26

///

27
28

The docket erroneously marks ECF No. 57 as plaintiff’s second amended
complaint. It is plaintiff’s third amended complaint.
2
1

1
2

II. DISCUSSION
An amended complaint supersedes the original complaint. See Ferdik v. Bonzelet,

3

963 F.2d 1258, 1262 (9th Cir. 1992). Because plaintiff amended his third amended complaint,

4

the Court cannot refer to the prior pleading to make plaintiff’s amended complaint complete. See

5

Local Rule 220. An amended complaint must be complete in itself without reference to any prior

6

pleading. See id.

7

Plaintiff’s present fourth amended complaint is far more disorganized and does not

8

rectify the defects in plaintiff’s third amended complaint which were amendable to rectification.

9

Plaintiff’s present complaint does not address plaintiff’s First Amendment access to court claim.

10

Plaintiff’s amended complaint also does not remedy the issues with plaintiff’s previous

11

Fourteenth Amendment false accusation claims because plaintiff only offers one conclusory

12

statement that defendant Rogers made false allegations. See ECF No. 60, pg. 7.

13

In addition, many of plaintiff’s previously cognizable claims are no longer alleged

14

with sufficient detail to pass screening. For example, plaintiff’s third amended complaint states a

15

cognizable Eighth Amendment excessive force claim against “Asian Nurse Doe Defendant” by

16

claiming that “Asian Nurse” dropped her left knee on plaintiff’s hand, shoved her right knee on

17

plaintiff’s abdomen, and threatened to push plaintiff off a gurney. See ECF No. 60, pg. 4. In his

18

present complaint, plaintiff only makes the conclusory assertions that “Asian Nurse” assaulted

19

him and that she is a terrorist. See ECF No. 68, pgs. 7-8. Plaintiff’s fourth amended complaint

20

contains numerous similar instances where plaintiff’s new complaint does not allege sufficient

21

factual information to state a cognizable claim. Very few, if any, of plaintiff’s claims would pass

22

screening in his fourth amended complaint.

23

Because plaintiff has not been able to amend the defects in his previous

24

complaints, and because plaintiff’s third amended complaint stated some cognizable claims, the

25

Court will provide plaintiff an opportunity to withdraw his current fourth amended complaint, in

26

which event the Court will direct service of the third amended complaint as to the cognizable

27

claims previously identified. If plaintiff elects not to withdraw the fourth amended complaint, the

28

Court will issue findings and recommendations that the action be dismissed for failure to state a
3

1

claim upon which relief can be granted.

2
3
4

III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that plaintiff may withdraw his Fourth

5

Amended Complaint within 30 days of the date of service of this order, in which event this action

6

shall proceed on plaintiff’s third amended complaint filed on June 3, 2019. Absent plaintiff’s

7

withdrawal of the Fourth Amended Complaint, the Court will issue Findings and

8

Recommendations relative to the defects in that pleading, and Plaintiff will be provided an

9

opportunity to object thereto.

10
11

Dated: July 22, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4