Tamrat v. Schreeder et al
Filing
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ORDER OR DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 10/13/2020. Amended Complaint due by 11/16/2020. (kcS, COURT STAFF) (Filed on 10/13/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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HERMAN TAMRAT,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 20-cv-01323-PJH
ORDER OF DISMISSAL WITH LEAVE
TO AMEND
v.
ROBERT SCHREEDER, et al.,
Defendants.
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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42
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U.S.C. § 1983. The original complaint was dismissed with leave to amend and plaintiff
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has filed a second amended complaint.
DISCUSSION
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STANDARD OF REVIEW
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Federal courts must engage in a preliminary screening of cases in which prisoners
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seek redress from a governmental entity or officer or employee of a governmental entity.
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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and
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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief
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may be granted, or seek monetary relief from a defendant who is immune from such
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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.
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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement
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of the claim showing that the pleader is entitled to relief." "Specific facts are not
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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim
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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(citations omitted). Although in order to state a claim a complaint “does not need detailed
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factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment]
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to relief' requires more than labels and conclusions, and a formulaic recitation of the
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elements of a cause of action will not do. . . . Factual allegations must be enough to
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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state
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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme
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Court has recently explained the “plausible on its face” standard of Twombly: “While legal
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conclusions can provide the framework of a complaint, they must be supported by factual
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allegations. When there are well-pleaded factual allegations, a court should assume their
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United States District Court
Northern District of California
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veracity and then determine whether they plausibly give rise to an entitlement to relief.”
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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
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elements: (1) that a right secured by the Constitution or laws of the United States was
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violated, and (2) that the alleged deprivation was committed by a person acting under the
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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
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LEGAL CLAIMS
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Plaintiff alleges that he was illegally arrested and prosecuted, and defendants
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used excessive force during the arrest.
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Legal Standards
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An allegation of the use of excessive force by a law enforcement officer in
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effectuating an arrest states a valid claim under 42 U.S.C. § 1983. See Rutherford v. City
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of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham
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v. Connor, 490 U.S. 386 (1989); see also Byrd v. Phoenix Police Dep’t, 885 F.3d 639,
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641-42 (9th Cir. 2018) (pro se allegations that police officers “beat the crap out of” plaintiff
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and caused him severe injury enough to support a legally cognizable claim under §
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1983). Excessive force claims which arise in the context of an arrest or investigatory stop
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of a free citizen are analyzed under the Fourth Amendment reasonableness standard.
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See Graham v. Connor, 490 U.S. 386, 394-95 (1989).
A claim of unlawful arrest is cognizable under § 1983 for violation of the Fourth
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Amendment’s prohibition against unreasonable search and seizure if the complaint
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alleges that the arrest was without probable cause or other justification. See Pierson v.
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Ray, 386 U.S. 547, 555-558 (1967); Yousefian v. City of Glendale, 779 F.3d 1010, 1014
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n.1. (9th Cir. 2015) (absence of probable cause is essential element of § 1983 false
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arrest claim). And a claim of unlawful detention/imprisonment is cognizable under § 1983
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for violation of the Fourteenth Amendment’s guarantee of due process if the arrest was
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without probable cause or other justification and the defendant knew or should have
known that plaintiff was entitled to release. See Baker v. McCollan, 443 U.S. 137, 142-
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United States District Court
Northern District of California
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145 (1979); Lee v. County of Los Angeles, 250 F.3d 668, 684-85 (9th Cir. 2001) (plaintiff
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stated due process claim where police allegedly arrested plaintiff’s son without probable
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cause, detained him without verifying that he was the person for whom police had an
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arrest warrant, despite his obvious mental incapacity, and detained him for one day
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before extradition hearing, which led to his incarceration in another state for two years).
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But cf. Gant v. County of Los Angeles, 772 F.3d 608, 619, 621-22 (9th Cir. 2014)
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(because plaintiff did not inform defendants of his mistaken identity and because he
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received a prompt hearing, his due process claim based on unlawful post-arrest detention
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failed).
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In order to recover damages for an allegedly unconstitutional conviction or
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imprisonment, or for other harm caused by actions whose unlawfulness would render a
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conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction
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or sentence has been reversed on direct appeal, expunged by executive order, declared
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invalid by a state tribunal authorized to make such determination, or called into question
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by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S.
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477, 486-487 (1994). A claim for damages bearing that relationship to a conviction or
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sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487.
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In Wallace v. Kato, 549 U.S. 384, 393 (2007), the Court held that the “Heck rule for
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deferred accrual is called into play only when there exists ‘a conviction or sentence that
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has not been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’” Id. at
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391-93 (quoting Heck, 512 U.S. at 486-87). The Heck rule delays accrual only if there is
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an existing conviction on the date the statute of limitations begins to run, which in the
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case of wrongful arrest or wrongful imprisonment claims is when the plaintiff's
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confinement is no longer without legal process, but rather becomes a confinement
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pursuant to legal process – that is, for example, when he or she is bound over by a
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magistrate or arraigned on charges. Id. at 389-90. The Court stated that the contention
that “an action which would impugn an anticipated future conviction cannot be brought
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United States District Court
Northern District of California
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until that conviction occurs and is set aside” goes “well beyond Heck” and rejected it. Id.
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at 393 (italics in original). Although the Court was only considering when the statute of
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limitations began running on a false arrest/false imprisonment claim, the discussion
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quoted suggests that Heck does not apply if there is no extant conviction – for instance, if
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plaintiff has only been arrested or charged.
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If a plaintiff files a § 1983 false arrest claim before he or she is convicted, or files
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any other claim related to rulings that likely will be made in a pending or anticipated
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criminal trial, it is within the power of the district court, and accords with common practice,
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to stay the civil action until the criminal case or the likelihood of a criminal case is ended.
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Id. at 393-94. If the plaintiff is then convicted, and if the stayed civil suit would impugn
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that conviction, Heck requires dismissal; otherwise, the case may proceed. Id. at 394.
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Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where
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official policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs.,
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436 U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for
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the unconstitutional acts of its employees under the theory of respondeat superior, see
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Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436
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U.S. at 691. To impose municipal liability under § 1983 for a violation of constitutional
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rights resulting from governmental inaction or omission, a plaintiff must show: “(1) that he
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possessed a constitutional right of which he or she was deprived; (2) that the municipality
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had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's
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constitutional rights; and (4) that the policy is the moving force behind the constitutional
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violation.” Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)
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(quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal quotation marks
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omitted). Proof of random acts or isolated incidents of unconstitutional action by a non-
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policymaking employee are insufficient to establish the existence of a municipal policy or
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custom. See Rivera v. County of Los Angeles, 745 F.3d 384, 398 (9th Cir. 2014).
Background
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Plaintiff states that he was in an altercation with a security guard at a shopping
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United States District Court
Northern District of California
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mall that led to plaintiff being pepper sprayed by the security guard and the Santa Rosa
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Police Department responding. He states that police officers arrived and with guns
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drawn ordered him to get on the ground. Plaintiff did not comply, but he did place his
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backpack on the ground to show a form of submission. Before being approached by
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police officers, plaintiff stated that he couldn’t breathe and needed help due to the pepper
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spray.
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Plaintiff states that defendant Police Officer Albini approached plaintiff and even
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though plaintiff cooperated, Albini used excessive force in grabbing plaintiff’s arms and
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wrists and placing him on his stomach. Plaintiff states that Albini placed his knee with a
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great deal of pressure on the back of plaintiff’s back and back of his neck. Plaintiff was
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then handcuffed. Defendant Police Office Rhodes placed plaintiff’s legs in a twisted leg
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lock compression that made it difficult to breathe. Plaintiff states that the excessive force
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led to injuries and pain.
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Plaintiff was then transported to the hospital. At the hospital, Rhodes told plaintiff
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that the police viewed video footage from the shopping center which showed plaintiff
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chasing the security guard with a knife and that the security guard was injured. Plaintiff
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states that he did make an involuntary statement, but he was intimidated and is innocent.
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Discussion
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Plaintiff presents many allegations in his amended complaint including several
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troubling allegations of excessive force. Plaintiff has presented sufficient allegations of
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excessive force against Albini and Rhodes. However, the amended complaint is still
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dismissed with leave to amend to provide more information for the court to determine if
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the claims may proceed at this time.
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Plaintiff states that there was a criminal trial in September 2019, but it is not clear
the result of the trial. Plaintiff is currently incarcerated in state prison, but it is also not
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clear if that is related to the underlying incident in the action. If plaintiff was convicted,
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then many of his claims may not proceed pursuant to Heck unless the conviction has
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United States District Court
Northern District of California
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been reversed or expunged. Depending on the criminal charges against plaintiff, it is
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possible that the excessive force claims could continue if this civil rights action would not
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imply that his conviction was invalid. If the criminal prosecution is continuing, then this
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case may be stayed.
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Plaintiff was informed of the need to provide information regarding his conviction
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and charges, but he failed to provide this information in the amended complaint. If
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plaintiff files a second amended complaint, he must provide more information for the
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court to determine if this action can proceed. Plaintiff must describe why he is currently
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incarcerated and if it is for the underlying charges in this action. If he was convicted for
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the events in this case, he must describe the charges he was convicted of.
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CONCLUSION
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1. The amended complaint is DISMISSED with leave to amend in accordance
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with the standards set forth above. The second amended complaint must be filed no
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later than November 16, 2020, and must include the caption and civil case number used
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in this order and the words AMENDED COMPLAINT on the first page. Because an
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amended complaint completely replaces the original complaint, plaintiff must include in it
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all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
Cir. 1992). He may not incorporate material from the original complaint by reference.
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Failure to file amended complaint may result in dismissal of this action.
2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the
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court informed of any change of address by filing a separate paper with the clerk headed
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“Notice of Change of Address,” and must comply with the court's orders in a timely
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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
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pursuant to Federal Rule of Civil Procedure 41(b).
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IT IS SO ORDERED.
Dated: October 13, 2020
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PHYLLIS J. HAMILTON
United States District Judge
United States District Court
Northern District of California
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