Phillips v. Janda et al
Filing
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ORDER Denying Plaintiff's Renewed 42 Motion for Appointment of Counsel; Granting Plaintiff's 44 46 Motions to Clarify and for Leave to Submit Points and Authorities; and Sua Sponte Granting Plaintiff Extension of Time to Comply with Co urt's Order Requiring Amendment. Plaintiff is further Granted forty-five (45) days leave from the date this Order is entered into the Court's docket in which to file a Fourth Amended Complaint which cures all deficiencies. Signed by Judge Barry Ted Moskowitz on 11/12/14. (All non-registered users served via U.S. Mail Service t/w ECF 39 and 1983 complaint, per this Order)(rlu)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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IVORY J. PHILLIPS,
CDCR #F-90996,
Civil No.
Plaintiff,
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vs.
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2) DENYING PLAINTIFF’S
RENEWED MOTION FOR
APPOINTMENT OF COUNSEL
[ECF Doc. No. 42]
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GERALD JANDA; RALPH M. DIAZ;
DANIEL PARAMO; DR. JEFFREY
BEARD; C. LIVSEY; R. LORIOS; C.
OGBUEHI; G. PICKETT; E. SIMON;
LIEUTENANT R. RONALD DAVIS;
SHEILA ANDERSEN; DeLEON;
RODRIGUEZ; PEREZ; NAVARO; and
JOHN AND SALLY DOES 1-30,
AND
3) SUA SPONTE GRANTING
PLAINTIFF EXTENSION OF
TIME TO COMPLY WITH
COURT’S ORDER
REQUIRING AMENDMENT
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ORDER:
1) GRANTING PLAINTIFF’S
MOTIONS TO CLARIFY AND
FOR LEAVE TO SUBMIT
POINTS AND AUTHORITIES
[ECF Doc. Nos. 44, 46]
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13cv0567 BTM (JLB)
Defendants.
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Plaintiff, Ivory Phillips, a state prisoner currently incarcerated at the Richard J.
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Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding in pro
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se and in forma pauperis (“IFP”) in this civil rights action which he first initiated on
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March 11, 2013, pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).
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I.
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Background
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On June 3, 2014, the Court dismissed Plaintiff’s Third Amended Complaint
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(“TAC”) in its entirety based on Plaintiff’s repeated failures to comply with FED.R.CIV.P.
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8, and as frivolous, malicious, and for failing to state a claim pursuant to 28 U.S.C.
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§ 1915(e)(2)(B) and § 1915A(b). See June 3, 2014 Order (ECF Doc. No. 39). Because
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Plaintiff failed to follow the Court’s previous directions regarding necessary amendment
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of his Eighth Amendment, free exercise, and access to courts claims, the Court denied
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further leave to amend those claims as futile. Id. at 14. To the extent Plaintiff’s TAC
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alleged racial discrimination and conspiracy claims the Court had previously dismissed
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as frivolous, the Court found Plaintiff’s attempts to resurrect those claims both frivolous
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and malicious, and again denied him leave to amend. Id. at 14-15.
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However, a careful reading of Plaintiff’s TAC included what appeared to be a new
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claim of retaliation, arising in July 2013, and not previously alleged in any of Plaintiff’s
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prior pleadings. See TAC (ECF Doc. No. 20) at 18-23. Therefore, while the Court found
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Plaintiff failed to allege facts sufficient to support this newly-alleged retaliation claim,
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it granted him leave “to amend this claim only, and against Defendants Pickett, Espinoza,
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Perez, Rodriguez, Navaro, and Ramirez only.” Id. at 15 (emphasis original).
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The Court further directed the Clerk of Court to provide Plaintiff with a copy of
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its form § 1983 civil rights complaint for his use and convenience, and cautioned that his
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Fourth Amendment Complaint must be complete by itself, comply with FED.R.CIV.P. 8,
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and “add no additional Defendants or causes of action.” Id. at 16. Finally, the Court
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made clear that “should [Plaintiff] fail to file a Fourth Amended Complaint within the
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time provided, or file a Fourth Amended Complaint that fail[ed] to state a retaliation
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claim or otherwise comply with [its] Order,” it would “enter a final Order of dismissal
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of the entire action without prejudice as frivolous, malicious, and for failing to state a
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claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and
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§ 1915A(b).” Id. at 17.
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II.
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Plaintiff’s Responses
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Plaintiff failed to file a Fourth Amended Complaint within the time provided.
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Instead, he has since submitted several duplicative motions, miscellaneous requests and
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supplemental documents which wholly fail to acknowledge the existence of, or
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demonstrate any attempt to comply with, the Court’s June 3, 2014 Order.
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The first, which Plaintiff captions as “Class Action Motion for Leave: Notice of
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Motion: Motion to Submit Points and Authorities (“P&A’s”) in Support of, Motion to
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Appoint Counsel and or Clerical Support and Memorandum of P&As,” the Court
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construes as a renewed Motion for Appointment of Counsel (ECF Doc. No. 42). Plaintiff
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has also filed an “Amended” Motion for Leave to Submit P&As (ECF Doc. No. 46), in
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which he appears to seek permission to supplement his previous Motion for Appointment
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of Counsel, as well as at least one supplemental document in support these Motions
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(ECF Doc. Nos. 48).
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In addition, Plaintiff has filed a “Class Action Motion for Leave: Notice of
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Motion; and Request for Clarification of Order on Third Amended Complaint” (ECF
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Doc. No. 44), as well as two supplemental documents in support and/or to amend this
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Motion (ECF Doc. Nos. 51, 55). In these submissions, Plaintiff expresses confusion as
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the status of his case, and claims he did not receive any prior Order of dismissal. See
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ECF Doc. No. 44 at 2. Plaintiff asks the Court to clarify “which version of [his]
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Complaint is up for screening,” and how much time he has to “amend it for clarity and
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compliance.” Id. at 4.
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III.
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Renewed Motion for Appointment of Counsel
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Plaintiff again seeks the appointment of an attorney “and/or clerical support”
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because his case is a “complex” “multi-jurisdictional” “class action,” consisting of
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“approximately six (6) causes.” See Pl.’s Mot. (ECF Doc. No. 42) at 8.
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As the Court has previously noted, the Constitution provides no right to
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appointment of counsel in a civil case. See Lassiter v. Dept. of Social Services, 452 U.S.
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18, 25 (1981). And, while 28 U.S.C. § 1915(e)(1) provides district courts with discretion
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to appoint counsel for indigent persons, the exercise of this discretion is limited to cases
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which present “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
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Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the
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‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims
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pro se in light of the complexity of the legal issues involved.’ Neither of these issues is
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dispositive and both must be viewed together before reaching a decision.” Id. (quoting
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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
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The Court denied Plaintiff’s previous motion for appointment of counsel because
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he failed to show any exceptional circumstances required the exercise of its discretion
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under § 1915(e)(1). See June 3, 2014 Order at 4-5 (citing LaMere v. Risley, 827 F.2d
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622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017). Nothing offered in support of his
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current Motion or any of its supplements presents the Court with any justification to
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change that conclusion. And while Plaintiff continues to argue that appointment of
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counsel is warranted due to the complexity of his case, and his limited access to adequate
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law library facilities, see Pl.’s Mot. (ECF Doc. No. 42) at 8, his renewed request still fails
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to show either that the sole retaliation claim he has been granted leave to amend is
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unduly complex, or that he is unable to articulate the factual basis for that claim,
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especially in light of the Court’s June 3, 2014 Order, which clearly delineated the
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straightforward legal standards for alleging such a claim. See June 3, 2014 Order at 13-
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14; see also Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully
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the complexity of the relevant issues [for purposes of appointing counsel under § 1915]
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was a demonstration of the need for development of further facts, practically all cases
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would involve complex legal issues.”). For these reasons, the Court again DENIES
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Plaintiff’s Motion for Appointment of Counsel without prejudice (ECF Doc. No. 42).
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IV.
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Motions to Clarify and for Leave to Submit P&As
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In his Motion to Clarify (ECF Doc. No. 44), his Motion for Leave to Submit P&As
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(ECF Doc. No. 46), and in his supplemental filings offered in support (ECF Doc. Nos.
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48, 51, 53, 55), Plaintiff expresses confusion as to the status of his case, and claims he
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did not receive any previous Order dismissing or rejecting his claims. See Pl.’s Mot.
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(ECF Doc. No. 44) at 2-3. And while these documents comprise pages of case citations
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and mostly irrelevant legal jargon, they also contain random and disjointed factual
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allegations related to the current conditions of Plaintiff’s confinement at RJD. See, e.g.,
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Doc. No. 46 at 16-17. None of them can be fairly classified as an attempt to file a proper
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Fourth Amended Complaint, however.
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“confidential/legal mail” “pre-ripped open before arrival,” that he has not received mail
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“on numerous occasions,” and he asks the Court to clarify “which version of [his]
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Complaint is up for screening,” and provide him a “time-frame” in which to amend. Id.
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at 3.
Instead, Plaintiff alleges he has had
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While nothing in the Court’s docket indicates its June 3, 2014 Order, or any other
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Order issued in this case was ever returned by the U.S. Post Office as undeliverable, the
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Notice of Electronic Filing attached to the June 3, 2014 Order demonstrates that it was
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“served via U.S. Mail Service” along with a blank civil rights complaint on Plaintiff at
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the following address: Ivory J. Phillips, F-90996, RJ Donovan Correctional Facility, PO
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Box 799002, San Diego, CA 92179-9002 on 6/3/14 (ECF Doc. No. 39). Plaintiff has not
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been transferred from RJD or filed any Notice of Change of Address since he first
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initiated this case in March 2013, and it has long been generally presumed that mail
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properly addressed to a party at his last known address has been received. See Anderson
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v. U.S., 966 F.2d 487, 491-92 (9th Cir. 1992) (“Under the common law mailbox rule,
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proper and timely mailing of a document raises a rebuttable presumption that it is
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received by the addressee.”) (citing Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884)).
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Nevertheless, the Court will take Plaintiff at his word, and in an abundance of caution
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in light of his pro se status, assume that he did not receive either a copy of the Court’s
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June 3, 2014 Order, or a blank copy of the Court’s form § 1983 Complaint for him to use
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to amend. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.
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1988) (noting that where a plaintiff appears in propria persona in a civil rights case, the
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Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt).
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For these reasons, the Court will GRANT Plaintiff’s Motions to Clarify and for
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Leave to Submit P&As (ECF Doc. Nos. 44, 46), and further GRANT him additional time
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and one final opportunity in which to file a Fourth Amended Complaint which complies
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with the Court’s June 3, 2014 Order.
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V.
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Conclusion and Order
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Good cause appearing, IT IS HEREBY ORDERED that:
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1)
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Plaintiff’s Renewed Motion for Appointment of Counsel (ECF Doc. No. 42)
is DENIED.
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Plaintiff’s Motions to Clarify and for Leave to Submit Points & Authorities
(ECF Doc. Nos. 44, 46) are GRANTED.
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Plaintiff is further GRANTED forty-five (45) days leave from the date this
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Order is entered into the Court’s docket in which to file a Fourth Amended Complaint
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which cures all deficiencies of pleading described in the Court’s June 3, 2014 Order
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(ECF Doc. No. 39) as to his retaliation claims against Defendants Pickett, Espinoza,
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Perez, Rodriguez, Navaro and Rodriguez only.
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4)
The Clerk of Court is DIRECTED to provide Plaintiff another copy of the
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Court’s June 3, 2014 Order (ECF Doc. No. 39), as well as the Court’s form § 1983 civil
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rights complaint for his use in amending. Plaintiff must title his pleading as his Fourth
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Amended Complaint, include Civil Case No. 13cv0567 BTM (JLB) in its caption,
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complete it without reference to any of his previous pleadings, add no additional
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Defendants or causes of action, and comply with FED.R.CIV.P. 8, S.D. CAL. CIVLR 8.2
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(providing that civil rights actions filed by prisoners must be submitted on the form
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supplied by the court, must be signed by the plaintiff, and may not include more than
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fifteen (15) attached additional pages), and S.D. CAL. CIVLR 15.1.
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Finally, Plaintiff is cautioned that should he fail to file a Fourth Amended
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Complaint within the time provided, or file a Fourth Amended Complaint that fails to
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state a retaliation claim or otherwise comply with the Court’s June 3, 2014 Order, the
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Court will enter a final Order of dismissal of the entire action without prejudice and
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without any further leave to amend as frivolous, malicious, and for failing to state a claim
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upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b).
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DATED: November 12, 2014
BARRY TED MOSKOWITZ, Chief Judge
United States District Court
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