Jenkins v. Moon et al

Filing 7

ORDER CONSOLIDATING CASES; DISMISSING WITH LEAVE TO AMEND; INSTRUCTIONS TO CLERK. Signed by Judge William H. Alsup on 5/1/2013. (notewarel, COURT STAFF) (Filed on 5/1/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DR. BROCK; DR. CHASE; DR.
SIRKIN; SGT. SMITH; MOON;
SOTO; SGT. WARREN; Lt. L.
PENNISI, JR.; R. GROUNDS; L.V.N.
MCELROY,

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C 13-0481 WHA (PR)
C 13-0626 WHA (PR)
C 13-0867 WHA (PR)

vs.

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Plaintiff,

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Nos.

LARRY H. JENKINS,

ORDER CONSOLIDATING CASES;
DISMISSING WITH LEAVE TO
AMEND; INSTRUCTIONS TO
CLERK

Defendants

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INTRODUCTION
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Plaintiff, a prose prisoner, filed these three civil rights case under 42 U.S.C. 1983. The
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cases concern the same events, in which prison officials allegedly ignored plaintiffs suicidal
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condition and used excessive force against him. Consequently, the cases are consolidated. For
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the reasons discussed below, plaintiff is directed to file an amended complaint.
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ANALYSIS
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A.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek
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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. !d. at 1915A(b)(1),(2). Pro

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se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).
To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged deprivation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42,48 (1988).

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B.

LEGAL CLAIMS

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Plaintiff alleges that he told defendants Dr. Brock, Dr. Sirkin, and Dr. Chase that he was

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feeling suicidal, but that his complaints were ignored because of his race. After he was returned

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to his cell, he tried to kill himself. He alleges that defendant McElroy also ignored his

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complaints of feeling suicidal, and he then used his clothing to hang himself. Plaintiff alleges

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that after defendant Soto found him hanging, Soto beat him. He also alleges that defendant

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Lieutenant Pennisi, Jr., stopped the beating, but that he was nonetheless responsible for the

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actions of guards who ignored his medical complaints and beat him.

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separate complaints filed in three separate cases. This is an unnecessary waste of judicial

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resources as only one case is necessary to address plaintifrs claims. Plaintiff will be given

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leave to file an amended complaint in this first case (No. C 13-0481 WHA (PR)) setting forth all

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of his allegations and claims regarding the alleged failure to treat his suicidal condition and

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subsequent beating. In addition, he does not allege any actions or omissions by some of the

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defendants, such as defendants Moon, Warren, and Grounds. As to each defendant he includes

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in his amended complaint, plaintiff must allege how they participated in or caused failed to

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adequately address his suicidal condition and/or used excessive force against him after he

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attempted suicide.

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Despite the fact that these allegations are about related events, they are set forth in three

CONCLUSION
For the reasons set out above, it is hereby ordered as follows:

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1. The complaint is DISMISSED with leave to amend, as indicated above, within 28 days

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of the date this order is filed. The amended complaint must include the caption used in this

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order and the civil case number C 13-0481 WHA (PR) and the words AMENDED

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COMPLAJNT on the first page. Because an amended complaint completely replaces the

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original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference. Failure to amend within the designated time and in accordance

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with this order will result in the dismissal of this case.

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2. It is the plaintiffs responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing with the clerk a separate paper headed ''Notice of

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Change of Address." Papers intended to be filed in this case should be addressed to the clerk

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and not to the undersigned. Plaintiff must comply with the Court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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3. The three cases listed in the caption are consolidated into Case No. C 13-0481 WHA

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(PR). The clerk shall administratively close the files in Case No. C 13-0626 WHA (PR) and

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Case No. C 13-0867 WHA (PR), terminate all pending motions in those cases, and file the

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complaint from those cases as supplemental complaints in Case No. C 13-0481 WHA (PR). No

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fee is due in either Case No. C 13-0626 WHA (PR) and Case No. C 13-0867 WHA (PR).

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4. Any future motions, pleadings or communications from plaintiff regarding the

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matters raised in these three cases shall only include the civil case number No. C 13-0481

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WHA(PR).

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IT IS SO ORDERED.

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Dated: April~ 2013.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\WHA\CR.13\JENKINS0481 &0626.LTA. wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

LARRY H JENKINS,
Plaintiff,

v.

Case Number: CV13-00481 WHA
CV13-00626 WHA
CV13-00867 WHA

CERTIFICATE OF SERVICE

DR. BROCK, et al,
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 May 1, 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.

Larry H Jenkins P73230
Salinas Valley State Prison
P 0 Box 1050
Soledad, CA 93960
Dated: May 1, 2013
Richard W. Wieking, Clerk
By: Liz N oteware, Deputy Clerk