Patten v. Brown

Filing 98

ORDER by Judge Lucy H. Koh denying 46 Motion for Reconsideration ; denying 69 Motion for Default Judgment; denying 70 Motion for Reconsideration ; denying 71 Motion ; granting in part and denying in part 79 Motion to Dismiss; denying 88 Motion for Extension of Time to File Response/Reply ; finding as moot 89 Motion (Attachments: # 1 certificate of service) (mpb, COURT STAFF) (Filed on 5/11/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JASON MCCORD PATTEN,

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Plaintiff,

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v.
JERRY BROWN, et al.,

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Defendants.

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No. C 11-2057 LHK (PR)
ORDER ADDRESSING PENDING
MOTIONS; DISMISSAL WITH
LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint

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pursuant to 42 U.S.C. § 1983. Pending before the Court are Plaintiff’s motion for default

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judgment, motion to have requests for admissions deemed admitted, and motion to supplement

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first amended complaint. Also pending is Defendants’ motion to dismiss. The Court addresses

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these motions below.

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DISCUSSION
A.

Motion for Entry of Default Judgment

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On December 6, 2011, the Court ordered service of summonses and a copy of the

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amended complaint upon over twenty Defendants. (Docket No. 23.) On December 12, 2011, the

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Clerk of the Court issued those summonses. Between December 28, 2011, and January 13, 2012,

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summonses were returned executed on behalf of 11 Defendants. The remaining summonses

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were returned unexecuted between January 13, 2012, and February 3, 2012.
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On February 16, 2012, Plaintiff filed a motion for default judgment. (Docket No. 69.) In

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his motion, he argues that Defendant Matthew Cate was properly served on December 27, 2011,

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and he presumes that the remaining Defendants were also properly served at approximately that

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same time. Plaintiff requests that the Court enter a default judgment on every Defendant because

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none of the Defendants had filed an answer.

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Federal Rule of Civil Procedure 55(b)(2) provides for a Court ordered default judgment

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after an entry of default under Federal Rule of Civil Procedure 55(a). See Penpower Technology

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Ltd. v. SPC Technology, 627 F.Supp.2d 1083, 1088 (N.D. Cal. 2008) (emphasis added). Here,

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Plaintiff never sought an entry of default, nor has one been entered by the Clerk of the Court.

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See Fed. R. Civ. P. 55(a). Thus, Plaintiff’s motion is DENIED.

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Alternatively, even assuming that Plaintiff’s motion is proper, the docket indicates that

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the eleven Defendants, whose summonses were returned executed, have filed a waiver of reply,

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pursuant to 42 U.S.C. § 1997e(g). More importantly, it is well-settled law that the grant or

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denial of a motion for the entry of a default judgment is within the discretion of the district court.

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Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956) (per curiam). In his motion, Plaintiff

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failed to demonstrate any prejudice from the Defendants’ delay in appearing in this action. See

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Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (setting forth factors to be considered in

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exercising discretion to enter default judgment); see also Lau Ah Yew, 236 F.2d at 416

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(upholding denial of motion for entry of default judgment where answer was not timely).

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Because Plaintiff does not explain how he was prejudiced because of Defendants’ delay in

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responding, and because the Court recognizes the policy that “[c]ases should be decided upon

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their merits whenever reasonably possible,” Plaintiff’s motion for entry of a default judgment is

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DENIED. Eitel, 782 F.2d at 1472.

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B.

Motion to Have Requests for Admissions Deemed Admitted

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On December 22, 2011, Plaintiff served “Requests for Admissions” to Defendant Cate.

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(Docket. No. 71 at 2.) On December 28, 2011, Plaintiff served “Requests for Admissions” on

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Defendants M. Rodesillas and W. Kushner, III. (Id.) Plaintiff asserts that, as of February 13,

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2012, none of those Defendants had responded to his requests. Thus, according to Plaintiff, his
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requests for admission should be deemed admitted, pursuant to Federal Rule of Civil Procedure

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36.

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Federal Rule of Civil Procedure 36(a)(1) states, in relevant part, “A party may serve on

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any other party a written request to admit . . . .” Here, at the time Plaintiff served his Requests

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for Admissions, none of the aforementioned Defendants had been properly served, and thus was

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not yet a party. Defendant Cate’s summons came back executed on December 27, 2011 – five

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days after Plaintiff served the Request for Admissions upon him – and Defendant Cate requested

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representation from the Attorney General’s office on February 23, 2012. Executed summonses

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for Defendants Rodesillas and Kushner were not returned until January 2012 – also after Plaintiff

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served the Requests for Admissions upon them, and before they requested representation.

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Because Defendants were not “parties” at the time Plaintiff served these requests upon them, the

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requests were premature. Accordingly, Plaintiff’s motion is DENIED.

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C.

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Motion to Dismiss
On March 5, 2012, Defendants filed a motion to dismiss on the grounds that the amended

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complaint violates Federal Rule of Civil Procedure 12(b)(6), and also violates Federal Rules of

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Civil Procedure 18(a) and 20(a). Plaintiff filed a request for an extension of time to file his

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opposition. (Docket No. 88.) Plaintiff’s request is GRANTED. Plaintiff’s opposition, filed on

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April 12, 2012, is deemed timely filed. Defendants have filed a reply.

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As an initial matter, Plaintiff repeatedly asserts that he has been prevented from accessing

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the law library, and thus, prevented from conducting legal research, which he claims is necessary

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to properly oppose Defendants’ motion. Specifically, Plaintiff argues that from March 21, 2012

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through April 9, 2012, he was permitted access to the law library for a total of 75 minutes on

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March 26, 2012. (Docket No. 91 at 2.) However, according to the law library records, Plaintiff

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was granted “priority legal user” (“PLU”) status between March 6, 2012 and April 6, 2012.

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(Decl. S.L. DeLaCruz at ¶ 7.) Inmates with PLU status are given priority to access the law

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library twice a week. (Id. at ¶ 3.) The records reflected that Plaintiff attended legal-research

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sessions on March 5, March 12, March 19, March 21, March 26, and April 9, 2012 for over 90

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minutes each time. (Id. at ¶ 8.) To the extent Plaintiff wishes for more time in the law library,
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he must file the appropriate requests with Avenal State Prison, where he is currently housed.

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Further, despite Plaintiff’s allegations that Defendants are interfering with his access to the law

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library and his pursuit of litigation, none of the named Defendants in this action are affiliated

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with Avenal State Prison. Thus, it is inappropriate for this Court to resolve Plaintiff’s allegations

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that he is being prevented from accessing the law library.

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In his amended complaint, Plaintiff raised five federal causes of action and several state

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law claims. First, he claimed that Defendants Stone, Kiani, Kushner, Walker, Brown, Cate, and

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John Does were deliberately indifferent to his serious medical needs, in violation of the Eighth

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Amendment, for delaying or denying dental treatment. Second, he claimed that Defendants

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Jefferry, Upshaw, Cruzen, Wilson, Moore, Perez, Smith, Thompson, Saldana, Vasquez, Chaveri,

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Baland, Brown, and Cate prevented him from accessing legal research materials at the law

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library, and thus, denied him access to the courts because he was a “protective custody/special

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needs yard” inmate. Plaintiff alleged that this not only violated his right to access the courts, but

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also violated his right to equal protection. Third, Plaintiff alleged that Defendants Bowman,

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Upshaw, Cruzen, Wilson, Rodesillas, Moore, Perez, Saldana, Vasquez, Chaveri, Baland, Brown,

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and Cate denied his right to free exercise of religion and violated the RLUIPA by denying him

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access to religious services between August 21, 2008 and April 2, 2009. Plaintiff also alleged

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that they denied him equal protection because he was an inmate in the special needs yard.

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Fourth, Plaintiff claims that Smith, Brown, and Cate violated his right to bodily privacy, right to

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be free from unreasonable searches and seizures, and right to be free from cruel and unusual

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punishment on April 2, 2009, when Smith ordered him to strip in front of female prison staff.

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Fifth, Plaintiff argued that Defendants Upshaw, Cruzen, Wilson, Tobin, Perez, McNeil, Moore,

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Brown, Cate, Rodesillas, Jefferry, and John Does retaliated against him for filing grievances.

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Finally, Plaintiff alleged a variety of state law claims.

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1.

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal

Failure to State a Claim

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sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191,

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1199-1200 (9th Cir. 2003). To survive a motion to dismiss for failure to state a claim, a
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complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule

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of Civil Procedure 8.

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Rule 8(a)(2) requires only that the complaint include a “short and plain statement of the

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specific facts are

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unnecessary - the statement need only give the defendant “fair notice of the claim and the

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grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). All allegations of material fact are taken as true.

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Id. at 94. However, a plaintiff’s obligation to provide the grounds of his entitlement to relief

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“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do.” Twombly, 550 U.S. at 555 (citations and quotations omitted). Rather, the

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allegations in the complaint “must be enough to raise a right to relief above the speculative

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level.” Id.

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A motion to dismiss should be granted if the complaint does not proffer enough facts to

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state a claim for relief that is plausible on its face. See id. at 558-59. In addition, when resolving

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a motion to dismiss for failure to state a claim, the Court may not generally consider materials

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outside the pleadings. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). There are

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several exceptions to this rule. The Court may consider a matter that is properly the subject of

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judicial notice, such as matters of public record. Id. at 689. Additionally, the Court may

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consider exhibits attached to the complaint, see Hal Roach Studios, Inc. v. Richard Feiner &

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Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989), and documents referenced by the complaint

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and accepted by all parties as authentic. See Van Buskirk v. Cable News Network, Inc., 284 F.3d

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977, 980 (9th Cir. 2002).

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a.

Official Capacities

Plaintiff sues Defendants in both their individual and official capacities. However, the

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Eleventh Amendment bars from the federal courts suits against a state by its own citizens,

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citizens of another state or citizens, or subjects of any foreign state. Atascadero State Hosp. v.

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Scanlon, 473 U.S. 234, 237-38 (1985). This immunity also extends to suits against a state

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agency, see, e.g., Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th Cir. 2009), and to state
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officials sued in their official capacities, see Kentucky v. Graham, 473 U.S. 159, 169-70 (1985).

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Thus, Defendants’ motion to dismiss Plaintiff’s claims against them in their officials capacities is

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GRANTED.

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b.

Supervisory Defendants

Plaintiff sues Governor Jerry Brown and Secretary Matthew Cate as supervisors.

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Specifically, for each claim, Plaintiff generally alleges that Defendants Brown and Cate were

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aware of the alleged constitutional violations, were liable for failing to train or supervise

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employees, and that it was common practice or policy for these Defendants to perform these

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alleged constitutional violations. (Am. Compl. at 14, 15, 19, 22, 24-25.)

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Liability under § 1983 cannot be established solely on the basis of respondeat superior.

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Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 690-94 (1978). “A

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supervisor is only liable for constitutional violations of his subordinates if the supervisor

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participated in or directed the violations, or knew of the violations and failed to act to prevent

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them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Vague and conclusory allegations

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of official participation in civil rights violations are not sufficient to withstand a motion to

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dismiss.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Where

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the allegations against supervisory officials are simply “bald” or “conclusory” because they “are

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nothing more than a formulaic recitation of the elements,” the allegations are “not entitled to be

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assumed true.” See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (making distinction between

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“conceivable” and “plausible”).

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Here, Plaintiff provides no facts sufficient to “state a claim for relief that is plausible on

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its face” against Defendant Brown and Cate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007). Accordingly, Defendants’ motion to dismiss Defendants Brown and Cate is GRANTED.

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Because Plaintiff was previously given an opportunity to amend his supervisory claims after the

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Court advised him that his initial allegations were merely conclusory, the Court finds that further

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leave to amend would be futile.

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c.

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Denial of Access to Courts/Equal Protection

In Plaintiff’s amended complaint, he alleges that Defendants have consistently denied
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him access to the law library to conduct legal research or to make copies, even after many

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requests. Defendants argue that Plaintiff’s claim that he was denied access to the courts fails to

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state a claim because he has failed to establish that he suffered an “actual injury.”

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To establish a claim for any violation of the right of access to the courts, a prisoner must

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show he suffered an actual injury. See Lewis v. Casey, 518 U.S. 343, 350-55 (1996). To prove

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an actual injury, the prisoner must show that an inadequacy in the prison’s program or the

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prison’s active interference hindered his efforts to pursue a non-frivolous claim concerning his

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conviction or conditions of confinement. See id. at 354-55.

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Plaintiff responds that he suffered an actual injury of losing “over a year of custody

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credits – from [Plaintiff’s] criminal conviction/plea bargain – as a result of [Plaintiff’s] inability

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to research and pursue the issue.” (Opp. at 9.) Defendants argue that the Court already rejected

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this allegation in Plaintiff’s original complaint. However, Plaintiff’s allegation in his original

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complaint was less vague – though not by much. In Hebbe v. Pliler, the Ninth Circuit explained

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that the “actual injury” requirement was meant to “provide such access to facilitate the prisoner’s

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pursuit of a certain type of frustrated legal claim, such as direct appeals from the convictions for

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which he was incarcerated or actions under 42 U.S.C. § 1983 to vindicate basic constitutional

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rights.” 627 F.3d 338, 342-433 (9th Cir. 2010) (quoting Lewis, 518 U.S. at 354). Here, liberally

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construing Plaintiff’s claim, he does not appear to be arguing that he needs library access to

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“discover grievances,” in order to litigate effectively, but that his lack of library access is

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frustrating his attempt to research legal issues that he intended to bring to attack his conviction,

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which is sufficient to allege an “actual injury.” See id. Thus, Defendants’ motion to dismiss

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Plaintiff’s claim that he was denied access to the courts is DENIED.

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Plaintiff further claims that Defendants denied him equal protection because he was

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prevented from accessing the law library because he was a Sensitive Needs Yard inmate, and all

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non-Sensitive Needs Yard inmates get regular access to the law library. In response, Defendants

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assert that Plaintiff fails to state a claim because his allegations are conclusory. A review of

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Plaintiff amended complaint shows that indeed, his allegations are conclusory. Rather than

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provide facts, Plaintiff’s claim simply mentions the elements of an equal protection claim rather
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than containing sufficient allegations of the underlying facts such that they give fair notice to the

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opposing party. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see, e.g., AE v. County

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of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Starr standard to pleading policy or

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custom for claims against local government entities). Thus, Defendants’ motion to dismiss this

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claim is GRANTED. Plaintiff’s equal protection claim is DISMISSED. However, because

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Plaintiff has not had the opportunity to amend this claim, and it is factually possible for Plaintiff

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to amend the complaint so as to cure the deficiency, Schmier v. United States Court of Appeals,

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279 F.3d 817, 824 (9th Cir. 2002), the dismissal is with LEAVE TO AMEND if Plaintiff

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believes he can do so in good faith.

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d.

Strip search

In his amended complaint, Plaintiff claims that Defendant Smith forced Plaintiff to

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endure a strip search in front of several females. Plaintiff asserts that Defendant Smith did this

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to degrade and humiliate Plaintiff. Defendants argue that, under the PLRA, Plaintiff fails to state

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a claim because Plaintiff failed to allege any physical injury.

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“No Federal civil action may be brought by a prisoner confined in a jail, prison or other

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correctional facility for mental or emotional injury suffered while in custody without a prior

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showing of physical injury.” 42 U.S.C. § 1997e(e). However, section 1997e(e) applies only to

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claims for mental or emotional injury. Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002).

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Section 1997e(e) does not bar claims for nominal and punitive damages, or for the injunctive

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relief plaintiff demands. See id. at 629-30. The fact that Plaintiff did not allege any physical

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injury as a result of the strip-search may make his claims of very little financial value, but does

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not make the claim non-existent. Thus, Defendants’ motion to dismiss this claim is DENIED.

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e.

State law claims1

Defendants claim that Plaintiff failed to comply with California’s Tort Claims Act.

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Pursuant to the California Tort Claims Act (“CTCA”), Cal. Gov’t Code §§ 900 et seq., a

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personal injury claim against a public employee must be filed with the California Victim

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Defendants’ request for judicial notice is granted. (Docket No. 83.)

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Compensation and Government Claims Board (“Board”) within six months after the date of the

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event that gave rise to the claim. Cal. Gov’t Code § 911.2(a). Compliance with the CTCA filing

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requirement is mandatory; failure to file a claim within the requisite time period is a bar to future

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tort suits. Hernandez v. McClanahan, 996 F.Supp. 975, 977 (N.D. Cal. 1998).

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Here, Plaintiff’s claims against Defendants occurred between August 21, 2008 and April

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2, 2009. Thus, Plaintiff was required to file his claim with the Board no later than October 2,

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2009 – six months after the last day any claim may have accrued. Plaintiff submitted his tort

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claims to the Board on August 17, 2010, approximately ten months after the deadline. (Req. for

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Jud. Notice at 4.)

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Plaintiff argues that his claims were not untimely because the Board accepted and

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rejected his claims, rather than dismissed them as untimely. However, the Board had sent a

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letter to Plaintiff, informing him that his claim was “being accepted only to the extent it asserts

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allegations that arise from facts or events that occurred during the six months prior to the date it

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was presented.” (Id.) In the same letter, the Board indicated that, because of the complexity of

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Plaintiff’s claims, it believed that the Court system was the appropriate forum for resolving

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them. (Id.) On October 28, 2010, the Board sent Plaintiff a letter informing him that his claims

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had been rejected on October 21, 2010. (Id. at 3.)

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Because Plaintiff filed his claims with the Board on August 17, 2010, it is only timely for

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causes of actions based on facts or events which occurred up to six months prior to that date, i.e.,

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on or after February 17, 2010. Further, Plaintiff’s claims were only accepted for the allegations

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occurring with the previous six months. (Id. at4.) Here, as stated above, Plaintiff’s claims

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against named Defendants in this federal action occurred sometime between August 21, 2008

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and April 2, 2009 – over six months prior to the date Plaintiff filed his claim with the Board.

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Thus, the Board did not accept those claims, and Plaintiff’s state law claims are barred by the

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filing requirements of the CTCA. See Hernandez, 996 F.Supp. at 977. Defendants’ motion to

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dismiss Plaintiff’s state law claims is GRANTED.

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2.

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Defendants argue that Plaintiff’s amended complaint violates Federal Rules of Civil

Joinder of Claims/Defendants

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Procedure 18(a) and 20(a) because it improperly joins claims and Defendants. Under Rule 20 of

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the Federal Rules of Civil Procedure, a plaintiff may join any persons as defendants if: (1) any

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right to relief asserted against the defendants relates to or arises out of the same transaction,

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occurrence, or series of transactions or occurrences; and (2) there is at least one question of law

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or fact common to all the defendants. Fed. R. Civ. P. 20(a); Coughlin v. Rogers, 130 F.3d 1348,

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1351 (9th Cir. 1997). Once a defendant is properly joined under Rule 20, the plaintiff may join,

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as independent or alternative claims, as many claims as he has against that defendant,

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irrespective of whether those additional claims also satisfy Rule 20. See Fed. R. Civ. P. 18(a);

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Intercon Research Assoc., Ltd. v. Dresser Indus. Inc., 696 F.2d 53, 57 (7th Cir. 1982) (“[J]oinder

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of claims under Rule 18 becomes relevant only after the requirements of Rule 20 relating to

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joinder of parties has been met with respect to the party against whom the claim is sought to be

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asserted; the threshold question, then, is whether joinder of [a defendant] as a party was proper

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under Rule 20(a).”).

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The “same transaction” requirement in Rule 20 refers to “similarity in the factual

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background of a claim; claims that arise out of a systematic pattern of events” and have a “very

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definite logical relationship” arise out of the same transaction and occurrence. Bautista v. Los

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Angeles County, 216 F.3d 837, 842-843 (9th Cir. 2000) (Reinhardt, J., concurring) (quoting

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Coughlin, 130 F.3d at 1350 and Union Paving Co. v. Downer Corp., 276 F.2d 468, 470 (9th Cir.

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1960)). In addition, “the mere fact that all [of a plaintiff’s] claims arise under the same general

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law does not necessarily establish a common question of law or fact.” Coughlin, 130 F.3d at

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1351. Claims “involv[ing] different legal issues, standards, and procedures” do not involve

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common factual or legal questions. Id.

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In Plaintiff’s amended complaint, the Court found cognizable five different federal

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claims involving separate incidents and distinct sets of Defendants. For example, in Claim 1,

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Plaintiff alleges Defendants Stone, Kiani, Kushner, and Walker denied him dental needs. In

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Claim 2, Plaintiff alleges that Defendants Jefferry, Upshaw, Cruzen, Wilson, Moore, Perez,

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Smith, Thompson, Saldana, Vasquez, Chaveri, Baland prevented him from accessing the law

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library. In Claim 3, Plaintiff asserts that Defendants Bowman, Upshaw, Cruzen, Wilson,
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Rodesillas, Moore, Perez, Saldana, Vasquez, Chaveri, and Baland denied him access to religious

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services. In Claim 4, Plaintiff claims that Defendant Smith subjected him to a non-emergency

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strip search in front of female individuals. In Claim 5, Plaintiff argues that Defendants Upshaw,

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Cruzen, Wilson, Tobin, Perez, McNeil, Moore, Rodesillas, and Jefferry retaliated against him.

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Unrelated claims that involve different defendants must be brought in separate lawsuits.

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See George, 507 F.3d at 607. This rule is not only intended to avoid confusion that arises out of

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bloated lawsuits, but also to ensure that prisoners pay the required filing fees for their lawsuits

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and prevent prisoners from circumventing the three strikes rule under the Prison Litigation

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Reform Act.2 28 U.S.C. § 1915(g).

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Plaintiff’s amended complaint does not meet the requirements of Rules 18(a) and 20(a),

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and, therefore, Defendants’ motion to dismiss for misjoinder is GRANTED. Plaintiff’s amended

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complaint is DISMISSED.

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Plaintiff, however, is granted leave to file a second amended complaint that cures the

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noted pleading deficiencies. In particular, Plaintiff may file either: (1) a complaint that brings

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one or more claims against one Defendant, as set forth in Rule 18(a), or (2) a complaint that

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brings one or more claims against multiple Defendants, but only if those Defendants can be

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properly joined under Rule 20(a)(2). In order to bring multiple claims in a single lawsuit,

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plaintiff must demonstrate that the Federal Rules of Civil Procedure permit the claims to be

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brought in a single lawsuit. Plaintiff must demonstrate how his right to relief arose out of the

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same “transaction, occurrence, or series of transactions.” Plaintiff may, if he so chooses, file a

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separate action or actions raising the claims that he does not include in any amended complaint

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he files in the instant action. Any further attempt to raise unrelated claims against different

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defendants in a single lawsuit may result in all claims being dismissed. Should Plaintiff fail

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to comply with this order, the action will be dismissed without prejudice.

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In light of the dismissal of Plaintiff’s amended complaint with leave to amend, Plaintiff’s

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The Prison Litigation Reform Act allows prisoners to file complaints without
prepayment of the filing fee unless they have previously filed three frivolous suits as a prisoner.
28 U.S.C. § 1915(a),(g).
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motion to supplement that amended complaint is DENIED as moot.

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D.

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Motion for Reconsideration of Appointment of Counsel
Plaintiff has requested reconsideration of his request for appointment of counsel.

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Plaintiff’s request is DENIED. Plaintiff has not shown any changed circumstances from the

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Court’s previous orders denying appointment of counsel on June 16, 2011, August 19, 2011, and

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December 6, 2011.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

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Plaintiff’s motion for entry of default is DENIED. Plaintiff’s motion to have his

requests for admissions admitted is DENIED.
2.

Defendants’ motion to dismiss for failure to state a claim is GRANTED in part

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and DENIED in part. Plaintiff’s claims against Defendants in their official capacities are

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DISMISSED. Defendants Brown and Cate are DISMISSED. Plaintiff’s claim that he was

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denied equal protection is DISMISSED with leave to amend. Plaintiff’s state law claims are

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DISMISSED.

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3.

Defendants’ motion to dismiss for misjoinder is GRANTED. Plaintiff’s amended

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complaint is DISMISSED with leave to amend. Plaintiff’s motion to supplement his amended

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complaint is DENIED as moot.

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4.

Plaintiff’s motion for reconsideration and appointment of counsel is DENIED.

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5.

Plaintiff shall file a SECOND AMENDED COMPLAINT within thirty days

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from the date this order is filed to cure the deficiencies described above. The amended

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complaint must include the caption and civil case number used in this order (C 11-2057 LHK

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(PR)) and the words SECOND AMENDED COMPLAINT on the first page. Plaintiff may not

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incorporate material from the prior complaint by reference. Failure to file a second amended

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complaint within thirty days, and in accordance with this order will result in dismissal of

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this action.

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6.

Plaintiff is advised that an amended complaint supersedes the original complaint.

“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged
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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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7.

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 “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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

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of Civil Procedure 41(b).

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This order terminates docket numbers 46, 69, 70, 71, 79, 88, and 89.
IT IS SO ORDERED.
DATED: 5/10/12
LUCY H. KOH
United States District Judge

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Order Addressing Pending Motions; Dismissal with Leave to Amend
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