(PS) Creel v. Sacramento County Sheriff Department et al
Filing
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ORDER signed by Magistrate Judge Sean C. Riordan on 1/24/2025 DIRECTING Plaintiff to file a Second Amended Complaint within 30 days of the date of this order. (Deputy Clerk VLK)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHAD MICHAEL CREEL,
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Plaintiff,
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v.
No. 2:24-cv-01533-KJM-SCR
ORDER
SACRAMENTO COUNTY SHERIFF
DEPARTMENT, et al.,
Defendants.
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Plaintiff is proceeding pro se in this action, and accordingly this matter was referred to the
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undersigned pursuant to Local Rule 302(c)(21). Plaintiff filed a motion for leave to proceed in
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forma pauperis (“IFP”) which was granted. ECF No. 5. On November 5, 2024, the Court issued
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an Order screening the original complaint pursuant to 28 U.S.C. 1915(e)(2). The Order advised
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Plaintiff of the deficiencies with the complaint, and allowed him 30 days to file an amended
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complaint. On December 6, 2024, Plaintiff filed a First Amended Complaint (“FAC”). ECF No.
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6. The Court now screens the FAC, and for the reasons provided below, the Court finds
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Plaintiff’s FAC is legally deficient and will grant Plaintiff a second opportunity to file an
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amended complaint.
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I. SCREENING
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A.
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The federal IFP statute requires federal courts to dismiss a case if the action is legally
Legal Standard
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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In
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reviewing the complaint, the Court is guided by the requirements of the Federal Rules of Civil
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Procedure. Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short
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and plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this
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court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled
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to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief
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sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly.
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Fed. R. Civ. P. 8(d)(1).
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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). In reviewing a complaint under this standard, the
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court will (1) accept as true all of the factual allegations contained in the complaint, unless they
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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the
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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von
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Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.
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denied, 564 U.S. 1037 (2011).
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The court applies the same rules of construction in determining whether the complaint
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states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court
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must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must
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construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a
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less stringent standard than those drafted by lawyers. Erickson, 551 U.S. at 94. However, the
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court need not accept as true legal conclusions, even if cast as factual allegations. See Moss v.
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U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). A formulaic recitation of the elements of
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a cause of action does not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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To state a claim on which relief may be granted, the plaintiff must allege enough facts “to
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state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
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678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity
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to amend, unless the complaint’s deficiencies could not be cured by amendment. See Akhtar v.
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Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012).
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B.
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Plaintiff’s FAC names as defendants: 1) Sacramento County Board of Supervisors; 2)
The First Amended Complaint (“FAC”)
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Sacramento County Sheriff’s Department; 3) CHP, and 4) “Jon Doe Jane Doe”. ECF No. 6 at 2-
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3. The FAC asserts federal question jurisdiction and states “see cover letter.” Id. at 4. The civil
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cover sheet states that jurisdiction is based on the U.S. Government being a Plaintiff, and the
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nature of the suit is Americans with Disabilities-Employment. ECF No. 6-1. The rest of the form
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complaint is then blank with only references to “see cover letter.” ECF No. 6 at 4-6.
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Page eight of the FAC states Plaintiff is pursuing a claim under 42 U.S.C. § 1983 against
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the California Highway Patrol (“CHP”). ECF No. 6 at 8. Plaintiff alleges he was unlawfully
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detained for making the middle finger gesture at a passing CHP officer. Id. Plaintiff alleges his
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detention was in retaliation for exercise of his First Amendment rights. Plaintiff contends this
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unlawful detention occurred on September 17, 2023. Id. at 8.
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The FAC is incorrectly formatted as it contains multiple captions and signatures. Six
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times the caption is repeated, and in three different places it is signed. At page eleven is a new
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caption and a description of Plaintiff’s claim against the Sacramento County Sheriff’s
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Department. ECF No. 6 at 11. Plaintiff contends on January 8, 2024, he was unlawfully detained
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by the Sacramento County Sheriff’s Department. Id. Plaintiff again claims the detention was for
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making a middle finger gesture. Id. at 12.
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Page 13 then appears to duplicate the allegations on page 11. Page 14 contains a series of
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conclusory allegations, including excessive force, illegal search and seizure, failure to train,
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sexual misconduct, and emotional distress. ECF No. 6 at 14-15. Pages 16 through 18 then again
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repeat allegations against the Sacramento County Sheriff’s Department.
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C.
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The FAC does not contain a proper statement of federal jurisdiction. Plaintiff asserts
Analysis
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jurisdiction based on the plaintiff being the U.S. Government, which is incorrect, and based on
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this being an ADA employment action, even though there are not allegations about Plaintiff
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having a disability or about employment. However, Plaintiff does make reference to 42 U.S.C. §
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1983, which would be a proper basis for federal jurisdiction. Plaintiff was informed in the prior
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screening order (ECF No. 5) that, “[Section] 1983 ‘is not itself a source of substantive rights,’ but
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merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v.
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Connor, 490 U.S. 386, 393–94 (1989). The prior Order also set forth the requirements to state a
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claim under § 1983. ECF No. 5 at 4. In order to state a claim under section 1983, a plaintiff is
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required to plead that (1) a defendant acting under color of state law (2) deprived plaintiff of
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rights secured by the Constitution or federal statutes. Benavidez v. County of San Diego, 993
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F.3d 1134, 1144 (9th Cir. 2021). Plaintiff does not allege that any named individual violated his
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constitutional rights. Plaintiff could conceivably allege facts to support a claim for First
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Amendment retaliation related to his making an obscene gesture. See Duran v. City of Douglas,
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904 F.2d 1372, 1378 (9th Cir. 1990); Mitchell v. City of Henderson, 2015 WL 427835 (D. Nev.
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2015) (“Individuals are entitled to verbally oppose police activities, which includes obscene
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gestures such as giving the middle finger.”). However, as currently pleaded, the instant FAC fails
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to state a claim.
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The FAC does not name any individual defendants. To the extent Plaintiff seeks to hold
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liable a local governmental unit, he would need to satisfy the pleading requirements under the
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standard set forth in Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). In order to
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establish liability under Monell, “a plaintiff must … establish that the local government had a
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deliberate policy, custom, or practice that was the moving force behind the constitutional
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violation they suffered.” Vanegas v. City of Pasadena, 46 F.4th 1159, 1167 (9th Cir. 2022).
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Plaintiff has not sufficiently alleged a policy, custom, or practice. Plaintiff makes a conclusory
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assertion that the Sheriff’s Department failed to provide adequate training. ECF No. 6 at 14. He
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claims the Department did not provide adequate training “related to mental health crises and
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appropriate responses to individuals in distress.” Id. Plaintiff does not allege how this alleged
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inadequate training was the moving force behind a constitutional violation. Plaintiff does not
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allege that he was having a mental health crisis or was an individual in distress.
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Plaintiff has also named CHP as a defendant. However, CHP itself is entitled to sovereign
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immunity from § 1983 claims. See O’Leary v. California Highway Patrol, 923 F.2d 862 (9th Cir.
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1991) (“Because the CHP is a state agency … and the State of California has not consented to suit
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… both the State and the CHP enjoy sovereign immunity and cannot be sued under section
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1983.”). Individual CHP officers may be sued in their individual or personal capacities under §
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1983, assuming the other requirements for § 1983 liability are adequately set forth. See Hafer v.
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Melo, 502 U.S. 21, 30 (1991) (state officials sued in their individual capacities are “persons”
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within the meaning of section 1983).
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There appear to be two different events alleged in the FAC involving different law
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enforcement agencies. There is the event of September 2023 involving CHP, and the event of
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January 2024 involving the Sheriff’s Department. Federal Rule of Civil Procedure 20 governs
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permissive joinder of parties and explains that defendants may be joined into the same action if:
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(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect
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to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
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(B) any question of law or fact common to all defendants will arise in the action. It is unclear
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whether Plaintiff alleges the two events are part of the same transaction or occurrence.
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Finally, Plaintiff’s FAC contains conclusory references to “excessive use of force,”
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“illegal search and seizure,” and “sexual misconduct,” but Plaintiff does not set forth factual
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allegations to support these conclusions. The court need not assume the truth of legal conclusions
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cast as factual allegations. See Moss, 572 F.3d at 969. A formulaic recitation of the elements of a
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cause of action does not suffice to state a claim. See Twombly, 550 U.S. at 555-57. Pleading that
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an officer “used excessive force,” does not describe what force was used, the manner of such
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force, or the circumstances surrounding the use of force.
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Although the FAC does not contain a valid jurisdictional statement, the Court would have
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jurisdiction over any of Plaintiff’s cognizable3 § 1983 claims. The FAC however fails to plead
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sufficient facts supporting its conclusory assertions, names at least one defendant who has
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sovereign immunity against suit, and does not plead facts sufficient to establish Monell liability.
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The FAC fails to state a claim and is subject to dismissal pursuant to 28 U.S.C. §
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1915(e)(2)(B)(ii). However, Plaintiff is proceeding pro se and a pro se litigant should be given
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leave to amend unless it is absolutely clear that the deficiencies cannot be cured by amendment.
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Akhtar, 698 F.3d at 1212. Rather than recommending dismissal of the action, the undersigned
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will provide Plaintiff a second opportunity to amend the complaint to allege a proper basis for
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jurisdiction and facts supporting a cognizable cause of action.
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II. AMENDING THE COMPLAINT
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If plaintiff chooses to amend the complaint, the amended complaint must allege facts
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establishing the existence of federal jurisdiction and address the other issues the Court identified
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above. In addition, it must contain a short and plain statement of plaintiff’s claims. The
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allegations of the complaint must be set forth in sequentially numbered paragraphs, with each
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paragraph number being one greater than the one before, each paragraph having its own number,
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and no paragraph number being repeated anywhere in the complaint. Each paragraph should be
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limited “to a single set of circumstances” where possible. Rule 10(b). As noted above, forms are
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available to help plaintiffs organize their complaint in the proper way. They are available at the
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Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at
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www.uscourts.gov/forms/pro-se-forms.
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Plaintiff’s amended complaint shall be clearly labeled as the “Second Amended
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Complaint” and shall not contain duplicative portions as the FAC did – for example, it should
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not contain multiple captions and signature lines.
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The second amended complaint must not force the Court and the defendants to guess at
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what is being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir.
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1996) (affirming dismissal of a complaint where the district court was “literally guessing as to
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what facts support the legal claims being asserted against certain defendants”). The second
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amended complaint should contain specific allegations as to the actions of each named defendant.
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Also, the second amended complaint must not refer to a prior pleading in order to make it
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complete. An amended complaint must be complete in itself without reference to any prior
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pleading. Local Rule 220. This is because, as a general rule, an amended complaint supersedes
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the original complaint. See Pacific Bell Tel. Co. v. Linkline Communications, Inc., 555 U.S. 438,
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456 n.4 (2009) (“[n]ormally, an amended complaint supersedes the original complaint”) (citing 6
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C. Wright & A. Miller, Federal Practice & Procedure § 1476, pp. 556-57 (2d ed. 1990)).
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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement
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of each defendant must be sufficiently alleged.
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III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff shall have 30 days from the date of this order to file a second amended
complaint that addresses the defects set forth above.
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2. Alternatively, if Plaintiff no longer wishes to pursue this action, Plaintiff may file a notice
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of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil
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Procedure.
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3. If Plaintiff does not file a second amended complaint within 30 days, the Court will issue
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Findings and Recommendations that the action be dismissed for failure to state a claim
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upon which relief may be granted.
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SO ORDERED.
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DATED: January 24, 2025
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