(PC) Brown v. Moore et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 1/6/2021 DISMISSING plaintiff's amended complaint and GRANTING plaintiff 30 days to file a second amended complaint in accordance with this order. The Clerk shall send plaintiff a civil right complaint form. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RONNIE CHEROKEE BROWN,
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No. 2:20-cv-2387 KJN P
Plaintiff,
v.
ORDER
D. MOORE, et al.,
Defendants.
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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to
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42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court
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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On December 16, 2020, plaintiff filed a
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document entitled “Amended Complaint.” (ECF No. 11.)
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The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
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Plaintiff’s December 16, 2020 filing cannot be fairly construed as an amended pleading;
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plaintiff fails to specifically identify each defendant and his or her location, or specifically name
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each defendant in the caption of his pleading; fails to set forth any requested remedy; and appears
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to simply argue with the court’s screening of plaintiff’s claims. For example, plaintiff argues that
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the actions of the defendants in wrongfully taking plaintiff’s property was intentional, claiming
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that demonstrates a due process claim. But plaintiff is mistaken. Plaintiff’s claim does not hinge
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on whether the actions of defendants were intentional, but rather whether the deprivation of
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plaintiff’s personal property was unauthorized. Plaintiff’s allegations suggest that the taking of
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his personal property was not authorized because he claims it was done in retaliation. Thus, the
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taking of his personal property is the injury he suffered in connection with his alleged retaliation
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claim. If plaintiff wishes to challenge the unauthorized taking of his property, he must pursue
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such tort claim in state court, as previously explained. (ECF No. 6 at 3-4.)
In addition, plaintiff now states that prior to searching plaintiff’s cell, “defendants” told
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plaintiff if he filed a grievance they would confiscate some of his personal property. (ECF No. 11
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at 2.) Plaintiff’s new allegation concerning retaliation poses a closer question because plaintiff
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failed to include specific facts concerning the timing of the “defendants” alleged statement, as
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well as the date or timing of the challenged cell search. As plaintiff was informed in the initial
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screening order, plaintiff must allege specific facts as to each named defendant. Plaintiff must
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allege facts supporting each element of a retaliation claim: “(1) An assertion that a state actor
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took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct,
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and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the
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action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
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559, 567-68 (9th Cir. 2005). Plaintiff’s vague statement in his recent filing is insufficient to meet
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each of these elements, and fails to clearly demonstrate the timing of such verbal statements and
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the date the cell was searched. For example, did plaintiff file a grievance after the defendants’
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alleged statement thus allegedly prompting the challenged cell search?
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Finally, plaintiff was also informed that the court cannot refer to a prior pleading in order
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to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading.
For all of the above reasons, plaintiff’s amended complaint must be dismissed. The court
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grants leave to file a second amended complaint. In order to assist plaintiff in meeting the
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minimum pleading standards, he is required to file his second amended complaint on the court’s
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form complaint.
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If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how
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the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or
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statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended
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complaint must allege in specific terms how each named defendant is involved. There can be no
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liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a
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defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v.
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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.
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1978). Furthermore, vague and conclusory allegations of official participation in civil rights
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violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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Plaintiff is not required to cite legal authorities.
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Plaintiff is reminded that the court cannot refer to a prior pleading in order to make
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plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This requirement is
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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the
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original pleadings no longer serve any function in the case. Therefore, in a second amended
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complaint, as in an original complaint, each claim and the involvement of each defendant must be
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sufficiently alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s amended complaint is dismissed.
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2. Plaintiff is granted thirty days from the date of service of this order to file a second
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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules
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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must be filed
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on the court’s complaint form, bear the docket number assigned this case, and be labeled “Second
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Amended Complaint”; plaintiff must file an original and two copies of the second amended
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complaint; failure to file a second amended complaint that complies with this order will result in a
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recommendation that this action be dismissed.
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3. The Clerk of the Court shall send plaintiff the form for filing a civil rights complaint by
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a prisoner.
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Dated: January 6, 2021
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/brow2387.14am
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