Williams v. Tilley
Filing
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ORDER DENYING MOTIONS TO SUPPLEMENT COMPLAINT, FOR EXTENSION OF TIME, TO COMPEL AND TO CORRESPOND; DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS AND FOR SUMMARY JUDGMENT; GRANTING LEAVE TO FILE AMENDED COMPLAINT; SCHEDULING DISPOSITIVE MOTION BRIEFING. Signed by Judge Jeffrey S. White on 4/15/13. (jjoS, COURT STAFF) (Filed on 4/15/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KIRK DOUGLAS WILLIAMS,
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Plaintiff,
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v.
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K. TILLEY,
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Defendant.
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__________________________________ )
No. C 12-4707 JSW (PR)
ORDER DENYING MOTIONS
TO SUPPLEMENT
COMPLAINT, FOR
EXTENSION OF TIME, TO
COMPEL AND TO
CORRESPOND; DENYING IN
PART AND GRANTING IN
PART MOTION TO DISMISS
AND FOR SUMMARY
JUDGMENT; GRANTING
LEAVE TO FILE AMENDED
COMPLAINT; SCHEDULING
DISPOSITIVE MOTION
BRIEFING
(Docket Nos. 13, 14, 21, 22, 25)
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Plaintiff, a California prisoner proceeding pro se, filed this civil rights complaint
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in state court alleging that Defendant, an employee of Salinas Valley State Prison,
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violated Plaintiff’s constitutional rights. Defendant removed the case to this court. The
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Court reviewed the complaint pursuant to 28 U.S.C. § 1915A and found that, when
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liberally construed, it stated cognizable claims for violating his Eighth Amendment rights
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by denying him a meal, for violating his First Amendment rights by retaliating against
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him for filing administrative appeals, and for violating his constitutional right to access
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the courts by denying him administrative appeals forms.
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Plaintiff has filed a motion to “supplement” his complaint with additional
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allegations against Defendant. The motion is DENIED because it would result in
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piecemeal complaints in which his claims are spread over multiple documents. Plaintiff
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may add his new claims to this action by including them in an amended complaint,
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however. Plaintiff is therefore granted leave to file an amended complaint on or before
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May 14, 2013. The amended complaint must include the caption and civil case number
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used in this order (No. C 12-4707 JSW (PR)) and the words “COURT-ORDERED
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FIRST AMENDED COMPLAINT” on the first page. Because an amended complaint
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completely replaces the original complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1262
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(9th Cir. 1992), Plaintiff may not incorporate material from the original complaint by
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reference. Rather, he must include all of the claims and allegations, including those from
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the original complaint, that he wishes to pursue. Any claims not included in the amended
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complaint will no longer be part of this case. If Plaintiff does not file an amended
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complaint within the designated time and in accordance with this order, Plaintiff will not
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be allowed another opportunity to amend, the case will proceed solely on the basis of the
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cognizable claims in the original complaint, and he will not be given an opportunity to
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pursue the claims in the motion to supplement the case.
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Defendant has filed a motion to dismiss or in the alternative for summary
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judgment. In the motion, Defendant argues in part that Plaintiff’s claim that he was
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denied a single meal does not state a cognizable Eighth Amendment violation because
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the harm alleged is de minimis. Defendant is correct. See, e.g., Hudson v. McMillian,
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503 U.S. 1, 8-10 (1992) (8th Amendment excludes from constitutional recognition de
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minimis uses of force); Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995).
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Accordingly, the claim is DISMISSED from the original complaint, and it will be
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dismissed from any amended complaint he files in accordance with the foregoing
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paragraph. As Plaintiff has been granted leave to file an amended complaint,
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Defendant’s motion is otherwise DENIED without prejudice to refiling on or before July
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14, 2013. Plaintiff’s opposition, if any, will be due within 28 days of the date any such
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motion is filed, and Defendant shall file a reply brief within 14 days of the date any
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opposition is filed. The provisions and warnings included in the prior scheduling order
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of October 25, 2012, remain in effect except as modified herein. In light of the
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foregoing, Plaintiff’s motion to extend time to file an opposition to Defendant’s motion
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is DENIED as unnecessary.
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Plaintiff has filed a motion for permission to correspond with an inmate, Enrique
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Nava, whom he alleges was a witness to events giving rise to his claims but who is
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housed in a different prison. Plaintiff seeks non-confidential correspondence from Mr.
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Nava that is limited to the claims in this case. Defendant opposes the motion on the
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grounds that 15 Cal. Code Regs. § 3139 provides a procedure for Plaintiff to obtain
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permission for such correspondence from prison officials, but Plaintiff has not attempted
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to do so. In light of that procedure, Plaintiff’s motion is DENIED at this time.
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Defendant shall forthwith inform Plaintiff how to follow the procedure outlined in the
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regulations in order to seek and obtain a non-confidential declaration from Mr. Nava
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about this case. If Plaintiff follows this procedure, prison officials shall allow Plaintiff to
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obtain such a declaration if Mr. Nava is willing to provide one.
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Plaintiff’s motion to compel is DENIED because he has not certified that he has
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met and conferred with Defendant in good faith, or attempted to do so, to resolve his
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discovery disputes before seeking the Court’s intervention, as required by Federal Rule
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of Civil Procedure 37(a).
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IT IS SO ORDERED.
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DATED: April 15, 2013
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JEFFREY S. WHITE
United States District Judge
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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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WILLIAMS,
Case Number: CV12-04707 JSW
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Plaintiff,
CERTIFICATE OF SERVICE
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v.
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TILLEY et al,
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Defendant.
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/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 15, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
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Kirk Douglas Williams F-44523
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960
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Dated: April 15, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
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