Marroquin v. Esparza, et al.

Filing 12

SECOND ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Charles R. Breyer on 11/17/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 11/21/2011)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MARCO MARROQUIN, H-62380, Plaintiff(s), 9 10 11 12 vs. S. ESPARZA, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) No. C 11-0633 CRB (PR) SECOND ORDER OF DISMISSAL WITH LEAVE TO AMEND 13 14 Plaintiff, a prisoner at Pleasant Valley State Prison (PVSP), filed a pro se 15 complaint under 42 U.S.C. ยง 1983 alleging that, while he was at the Correctional 16 Training Facility (CTF), he complained to correctional staff about being sexually 17 harassed by two inmates. But the harassment increased rather than decreased, 18 which ultimately resulted in his getting in an altercation with one of the inmates 19 and his receiving a disciplinary finding of battery on another inmate without 20 serious injury. Plaintiff sought removal of the disciplinary finding and damages 21 for the correctional staff's handling of his complaint. 22 Per order filed on July 21, 2011, the court dismissed plaintiff's allegations 23 that CTF's correctional staff mishandled his complaint of sexual harassment with 24 leave to amend to set forth specific facts showing that one or more defendants 25 were deliberately indifferent to plaintiff's health or safety, if possible. Plaintiff 26 was also advised that he must link each named defendant with his allegations of 27 wrongdoing so as to show how each defendant actually and proximately caused 28 the deprivation of his federal rights of which he complains. The court also 1 dismissed plaintiff's request for removal of the disciplinary finding of battery on 2 another inmate without serious injury with leave to amend to set forth specific 3 facts showing that the disciplinary finding is not supported by some evidence in 4 the record, if possible. The made clear that failure to file a proper amended 5 complaint within 30 days would result in the dismissal of this action. 6 Plaintiff timely filed a First Amended Complaint (FAC) repeating the 7 same brief and insufficient allegations of his original complaint. And although 8 he attached a declaration this time around, it is written in Spanish. This will not 9 do. Plaintiff's original complaint was written in English, presumably with the 10 help of fellow prisoners. Plaintiff must seek assistance from fellow prisoners 11 again and submit a proper amended complaint written in English. 12 For the foregoing reasons, the FAC is dismissed with leave to amend, as 13 indicated above and in the court's prior order of dismissal with leave to amend, 14 within 30 days of this order. The pleading must be simple and concise and must 15 include the caption and civil case number used in this order and the words 16 SECOND AMENDED COMPLAINT on the first page. Failure to file a proper 17 second amended complaint (SAC) within the designated time will result in the 18 dismissal of this action. 19 Plaintiff is advised that the SAC will supersede the original complaint, 20 FAC and all other pleadings. Claims and defendants not included in the SAC 21 will not be considered by the court. See King v. Atiyeh, 814 F.2d 565, 567 (9th 22 Cir. 1987). 23 SO ORDERED. 24 DATED: Nov. 17, 2011 25 CHARLES R. BREYER United States District Judge 26 G:\PRO-SE\CRB\CR.11\Marroquin, M.11-0633.dwlta2.wpd 27 28 2

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