Tunstall v. Bick et al

Filing 73

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 08/05/20 RECOMMENDING that plaintiff's action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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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.

FINDINGS AND RECOMMENDATIONS

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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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. On September 13, 2019, the Court issued an order instructing

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plaintiff to file a fourth amended complaint due to deficiencies in plaintiff’s third amended

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complaint. See ECF No. 60. The Court advised plaintiff that his First Amendment access to court

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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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claim and Fourteenth Amendment due process claim regarding false charges could pass screening

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if amended. See ECF No. 60, pgs. 10-11. Plaintiff otherwise stated a cognizable Eighth

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Amendment medical care claim, Fourteenth Amendment due process claim, First Amendment

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retaliation claim, Eighth Amendment excessive force claim, and Americans with Disabilities Act

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violation. See ECF No. 60, pgs. 4-11. The Court also advised plaintiff that his Fifth Amendment

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Miranda rights claim, Fourteenth Amendment prison grievance claim, and Eighth Amendment

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verbal harassment claim could not pass screening even if plaintiff attempted to amend the

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complaint. Id.

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On January 6, 2020, plaintiff filed his fourth amended complaint. See ECF No. 68.

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However, plaintiff’s fourth amended complaint was far more disorganized than his previous

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complaint. Plaintiff not only failed to correct the deficiencies of his third amended complaint, but

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also failed to articulate claims which the Court had previously found adequately pled. Because the

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Court was unable to refer back to prior pleadings to make plaintiff’s fourth amended complaint

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complete, see Local Rule 220, the Court issued an order allowing plaintiff to withdraw his fourth

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amended complaint and proceed on the valid claims of his third amended complaint. See ECF No.

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71. The Court also stated that, if plaintiff elected not to withdraw his fourth amended complaint,

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the Court would issue findings and recommendations that the action be dismissed for failure to

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state a claim upon which relief can be granted. Id. at 3-4.

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On July 30, 2020, plaintiff submitted a response to the voluntary withdrawal order.

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See ECF No. 72. Plaintiff did not take the opportunity to withdraw his fourth amended complaint

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and proceed on the third amended complaint which stated cognizable claims appropriate for

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service. Instead, plaintiff charges, as to the Defendant and the Court, that:

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[They] are Law Enforcement and [their] corruption is endless [sic] and
Plaintiff is Garbage and as Garbage has nothing coming. The Court can do
whatever the Court wants to do because Plaintiff is nothing but Garbage.

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ECF No. 72, pg. 3.

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II. DISCUSSION
In its July 22, 2020 order, the Court screened plaintiff’s fourth amended complaint

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and stated that:

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An amended complaint supersedes the original complaint.
See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Because
plaintiff amended his third amended complaint, the Court cannot refer to
the prior pleading to make plaintiff’s amended complaint complete. See
Local Rule 220. An amended complaint must be complete in itself without
reference to any prior pleading. See id.
Plaintiff’s present fourth amended complaint is far more
disorganized and does not rectify the defects in plaintiff’s third amended
complaint which were amendable to rectification. Plaintiff’s present
complaint does not address plaintiff’s First Amendment access to court
claim. Plaintiff’s amended complaint also does not remedy the issues with
plaintiff’s previous Fourteenth Amendment false accusation claims
because plaintiff only offers one conclusory statement that defendant
Rogers made false allegations. See ECF No. 60, pg. 7.
In addition, many of plaintiff’s previously cognizable
claims are no longer alleged with sufficient detail to pass screening. For
example, plaintiff’s third amended complaint states a cognizable Eighth
Amendment excessive force claim against “Asian Nurse Doe Defendant”
by claiming that “Asian Nurse” dropped her left knee on plaintiff’s hand,
shoved her right knee on plaintiff’s abdomen, and threatened to push
plaintiff off a gurney. See ECF No. 60, pg. 4. In his present complaint,
plaintiff only makes the conclusory assertions that “Asian Nurse”
assaulted him and that she is a terrorist. See ECF No. 68, pgs. 7-8.
Plaintiff’s fourth amended complaint contains numerous similar instances
where plaintiff’s new complaint does not allege sufficient factual
information to state a cognizable claim. Very few, if any, of plaintiff’s
claims would pass screening in his fourth amended complaint.

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ECF No. 71, pg. 3.

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The Court also stated that:

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If plaintiff elects not to withdraw the fourth amended
complaint, the Court will issue findings and recommendations that the
action be dismissed for failure to state a claim upon which relief can be
granted.

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Id. at 3-4.

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As discussed above, plaintiff has not elected to withdraw his fourth amended

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complaint. Therefore, consistent with the Court’s prior analysis set forth above, the Court now

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finds that plaintiff’s fourth amended complaint fails to state a cognizable claim and should be

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dismissed without further leave to amend.

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III. CONCLUSION
Because it does not appear that plaintiff is willing to correct the deficiencies

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identified herein by amending the complaint, plaintiff should be afforded no further leave to

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amend, and the dismissal of the entire action is appropriate. See Lopez v. Smith, 203 F.3d 1122,

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1126, 1131 (9th Cir. 2000) (en banc).

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Based on the foregoing, the undersigned recommends that plaintiff’s action be
dismissed without prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal. See

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 5, 2020
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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