Barton v. Snaza et al

Filing 9

ORDER to AMEND or SHOW CAUSE and DENYING 8 Motion for Appointment of Counsel. Plaintiff's amended complaint or response to the Order to Show Cause due by 6/28/13. Signed by Magistrate Judge Karen L Strombom.(CMG; cc to Plaintiff w/enclosures) (Main Document 9 replaced on 5/31/2013) (CMG).

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1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 5 J.D. JONES BARTON, 6 7 8 9 10 11 12 Plaintiff, No. C13-5382 BHS/KLS v. JOHN D. SNAZA, JAMES DOWNING, GEORGE EATON, DEBORAH THOMPSON, VALERIE PETERS, THREASA BECKER, TODD L. THOMA, JON TUNHEIM, SCOTT M. JACKSON, OLIVIA ZHOU, ORDER TO AMEND OR SHOW CAUSE AND DENYING MOTION FOR COUNSEL Defendants. 13 J.D. Jones Barton is a prisoner at the Thurston County Correctional Facility (TCCF). His 14 pro se complaint names various employees of the TCCF and three Thurston County prosecutors. 15 Mr. Barton alleges that he has been denied access to courts and the freedom to practice his 16 religion in violation of the First Amendment, that he has been denied access to counsel in 17 18 violation of the Sixth Amendment, that his Fifth and Fourteenth Amendment due process rights 19 have been violated, that he has been subjected to cruel and unusual punishment in violation of 20 the Eighth Amendment, and that the defendants and “their respective state agencies current 21 practice, custom and policy” violate the “Separation of Powers Doctrine.” ECF No. 7. Plaintiff 22 also filed a motion for the appointment of counsel. ECF No. 8. 23 The Court declines to serve the complaint because it contains numerous deficiencies. 24 However, Plaintiff will be given an opportunity to explain why his complaint should not be 25 26 dismissed or, alternatively, to submit an amended complaint for the Court’s review. ORDER TO AMEND OR SHOW CAUSE- 1 1 2 DISCUSSION 3 4 Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or 5 employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint 6 7 or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that 8 fail to state a claim upon which relief may be granted, or that seek monetary relief from a 9 defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2) and 1915(e)(2); See 10 Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998). A complaint is legally frivolous when it 11 lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 12 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Although complaints are to be liberally 13 construed in a plaintiff’s favor, conclusory allegations of the law, unsupported conclusions, and 14 15 unwarranted inferences need not be accepted as true. Jenkins v. McKeithen, 395 U.S. 411, 421 16 (1969). Neither can the court supply essential facts that an inmate has failed to plead. Pena, 976 17 F.2d at 471 (quoting Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 18 1982)). 19 20 Based on the foregoing, Mr. Barton has failed to state a claim upon which relief may be granted under 42 U.S.C. § 1983. First, it is noted that Mr. Barton has failed to properly link his 21 22 23 24 claims of alleged constitutional violations with a particular defendant or defendants. A. 42 U.S.C. § 1983 To state a claim under § 1983, a complaint must allege: (i) the conduct complained of 25 was committed by a person acting under color of state law and (ii) the conduct deprived a person 26 of a right, privilege, or immunity secured by the Constitution or laws of the United States. Wood ORDER TO AMEND OR SHOW CAUSE- 2 1 v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). To state a valid § 1983 claim, a plaintiff must 2 allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he 3 must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. 4 Goode, 423 U.S. 362, 371-72, 377 (1976). 5 In addition, liability under section 1983 cannot be predicated on the theory of respondeat 6 7 superior, that is, that a supervisor is liable for the wrongful acts of his subordinates. See Taylor 8 v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Under section 1983, a supervisor may be liable only 9 if there exists either “(1) his or her personal involvement in the constitutional deprivation or (2) a 10 sufficient causal connection between the supervisor's wrongful conduct and the constitutional 11 violation.” Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir.1995). A plaintiff may not seek 12 to impose liability on defendants merely upon position of authority, based on vague or other 13 conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009). 14 15 The majority of Mr. Barton’s allegations are of actions taken by “TCCF.” For example, 16 he alleges vaguely that TCCF refused to provide him with his legal boxes, TCCF refused him 17 access to his court-appointed attorney, TCCF illegally seized and search his legal materials. See, 18 e.g., ECF No. 7, pp. 4-6. TCCF is not named as a party and normally an entity such as a jail 19 cannot be sued under §1983. Rather the proper defendant would be Thurston County, a 20 municipality that can be sued under § 1983. However, to hold a municipality liable, Mr. Barton 21 22 must allege facts showing that any constitutional deprivation he suffered was the result of a 23 custom or policy of TCCF. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 24 56 L.Ed.2d 611 (1978); City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting 25 Monell, 436 U.S. at 690). 26 ORDER TO AMEND OR SHOW CAUSE- 3 1 To state a valid § 1983 claim, Mr. Barton must allege that he suffered a specific injury as 2 a result of the conduct of a particular defendant. Therefore, he must name the individual state 3 actor or actors who allegedly violated his constitutional rights. 4 The Court will grant Plaintiff an opportunity to file an amended complaint. In the 5 amended complaint, Plaintiff must write out short, plain statements telling the Court (1) the 6 7 constitutional right Plaintiff believes was violated; (2) name of the person who violated the right; 8 (3) exactly what that individual did or failed to do; (4) how the action or inaction of that person 9 is connected to the violation of Plaintiff’s constitutional rights; and (5) what specific injury 10 Plaintiff suffered because of that person’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72, 11 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). If the person named as a defendant was a supervisory 12 official, Plaintiff must either state that the defendant personally participated in the constitutional 13 deprivation (and tell the Court the five things listed above), or Plaintiff must state, if he can do so 14 15 in good faith, that the defendant was aware of the similar widespread abuses, but with deliberate 16 indifference to Plaintiff’s constitutional rights, failed to take action to prevent further harm to 17 Plaintiff and also state facts to support this claim. See Monell, 436 U.S. 658 at 691. 18 19 20 Plaintiff must repeat this process for each person he names as a defendant, including any “John Doe” and “Jane Doe” defendants. If Plaintiff fails to affirmatively link the conduct of each named defendant with the specific injury suffered by Plaintiff, the claim against that 21 22 defendant will be dismissed for failure to state a claim. Conclusory allegations that a defendant 23 or group of defendants have violated a constitutional right are not acceptable and will be 24 dismissed. 25 26 ORDER TO AMEND OR SHOW CAUSE- 4 1 In the following paragraphs, the legal standards that appear to apply to Mr. Barton’s 2 claims are set forth. Mr. Barton should carefully review the standards and amend only those 3 claims that he believes, in good faith, are cognizable. 4 1) State Actors – Immunity 5 Mr. Barton names Thurston County Prosecutor Jon Tunheim and Deputy Prosecutors 6 7 Scott M. Jackson and Olivia Zhou. ECF No. 7, at p. 3. Despite their capacity as state actors, 8 “certain government officials require absolute immunity from liability in order to enable them to 9 function independently and effectively, without fear of intimidation or harassment.” Fry v. 10 Melaragno, 939 F.2d 832, 835 (9th Cir. 1991). Accordingly, judges, prosecutors, and officials 11 performing “quasi-judicial” functions have absolute immunity from suit for acts performed in 12 their official capacity. Id. at 836 (citing Mitchell v. Forsyth, 472 U.S. 511, 520 (1985)). State 13 prosecutors are entitled to absolute prosecutorial immunity for acts taken in their official 14 15 16 17 capacity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Absolute prosecutorial immunity would not apply where a prosecutor’s acts are administrative or investigative in nature. Id. Mr. Barton alleges only that on April 22, 2013, he received notice from the Thurston 18 County Prosecutor’s office of new felony charges and that on May 3, 2012, his court appointed 19 counsel advised him that the prosecutor’s office and TCCF were “infuriated” with him for filing 20 grievances and complaints against jail officers. ECF No. 7, at pp. 8, 9. Mr. Barton has failed to 21 22 23 demonstrate that the prosecutors are exempt from immunity. Mr. Barton must show cause why his complaint should not be dismissed as to these defendants. 24 2) Access to Courts 25 Inmates have a fundamental constitutional right of access to the courts and prison 26 officials may not actively interfere with Plaintiff's right to litigate. Lewis v. Casey, 518 U.S. 343, ORDER TO AMEND OR SHOW CAUSE- 5 1 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir.2009). 2 Courts have traditionally differentiated between two types of access claims, those involving the 3 right to affirmative assistance, and those involving inmate’s right to litigate without active 4 interference. Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011). 5 The right to assistance is limited to direct criminal appeals, habeas petitions, and civil 6 7 rights actions. Lewis, 518 U.S. at 354 (emphasis added). Prisoners also have the right to pursue 8 claims, without active interference, that have a reasonable basis in law or fact. Silva, 658 F.3d at 9 1103–04 (finding that repeatedly transferring the plaintiff to different prisons and seizing and 10 withholding all of his legal files constituted active interference). This right forbids state actors 11 from erecting barriers that impede the right of access to the courts of incarcerated persons. Silva, 12 658 F.3d at 1102 (internal quotations omitted). 13 Defendants’ actions must have been the proximate cause of actual prejudice to the 14 15 plaintiff. Silva, 658 F.3d at 1103–04. To state a viable claim for relief, a plaintiff must show 16 that he suffered an actual injury, which requires “actual prejudice to contemplated or existing 17 litigation” by being shut out of court. Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 18 (9th Cir.2011) (citing Lewis, 518 U.S. at 348, 351); Christopher v. Harbury, 536 U.S. 403, 415, 19 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); Phillips v. Hurst, 588 F.3d 652, 655 (9th Cir. 2009). 20 Mr. Barton alleges that “TCCF” refused to give him access to his legal materials, refused 21 22 to provide him with writing papers, pencils, and photocopies, and illegally seized and searched 23 his legal materials. ECF No. 7, pp. 5-6. Although Mr. Barton seems to imply that the foregoing 24 hindered his access to court, he does not explain how. As noted above, Mr. Barton must allege 25 what person, acting under color of state law, denied him access to court and how such denial 26 ORDER TO AMEND OR SHOW CAUSE- 6 1 caused him injury. Without further explanation, the complaint fails to state a cause of action. He 2 may amend his complaint to allege additional facts underlying this claim. 3 4 3) Legal Mail Mr. Barton alleges that H. Thompson “concealed a handwritten atty-client letter” which 5 was thereafter seized by some unknown individual and that H. Thompson read his confidential 6 7 papers. ECF No. 7, p. 6. He also alleges that his incoming mail was restricted by TCCF on 8 March 8, 2013 and that Sgt. Mills, Sgt. Becker, and H. Peters provided false statement regarding 9 the contents of the mail. Id., p. 7. 10 11 12 Prisoners retain a First Amendment right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). Prison officials may inspect non-legal mail for contraband without violating a prisoner’s constitutional 13 rights. See Smith v. Boyd, 945 F.2d 1041, 1043 (9th Cir.1991). In contrast, “[legal] mail may be 14 15 opened in the presence of the addressee and ... prison officials can require both that the letters be 16 specially marked with the name and address of the attorney and that the attorney communicate 17 first with prison officials.” Sherman v. McDougall, 656 F.2d 527, 528 (9th Cir.1981) (citing 18 Wolff v. MacDonald, 418 U.S. 539, 575–77 (1974)). “[M]ail from the courts, as contrasted to 19 mail from a prisoner’s lawyer, is not legal mail.” Keenan v. Hall, 83 F.3d 1083, 1094 (9th 20 Cir.1996). Additionally, an isolated instance or an occasional opening of legal mail outside of an 21 22 23 24 inmate’s presence does not rise to the level of a constitutional violation. See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir.1989). Based on these allegations, the Court is unable to determine if Mr. Barton has stated a 25 viable claim. He may amend his complaint with regard to this claim and should provide 26 additional facts from which it may be inferred that his constitutional rights were violated by any ORDER TO AMEND OR SHOW CAUSE- 7 1 alleged inspection and/or restriction of his mail. In addition, H. Thompson is not named as a 2 defendant in the complaint. Deborah Thompson is named as a defendant, but it is unclear 3 whether this is the same individual. 4 4) First Amendment – Freedom of Religion 5 Mr. Barton alleges that on February 11, 2013, two of his “personal religious 6 7 (Asatru/Odinist) books” were confiscated by an unidentified person and that he was not therefore 8 able to perform “a sacred worship/ritual/ceremonial rite” on February 14, 2013 and March 21, 9 2013. ECF No. 7, pp. 6, 7. He alleges that he grieved this issue and Sgt. Becker and H. Peters 10 11 12 13 refused to give him his religious books because they were not deemed “Holy Books.” Id. In order to implicate the Free Exercise Clause, the inmate’s belief must be religious in nature and sincerely held. See Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (internal quotations and citation omitted); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) 14 15 (adopting the “sincerity test” set forth in Malik, supra). Inmates with such beliefs have “[t]he 16 right to exercise [their] religious practices and beliefs....” McElyea v. Babbitt, 833 F.2d 196, 197 17 (9th Cir. 1987) (per curiam) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). A 18 free exercise violation occurs when the defendants burden the practice of an inmate’s religion by 19 preventing the inmate from engaging in sincere religious conduct. See Freeman v. Arpaio, 125 20 F.3d 732, 736 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 885. A mere 21 22 23 24 inconvenience does not give rise to a violation; the burden imposed must be substantial. Freeman, 125 F.3d at 737. A restriction on an inmate’s First Amendment religious rights is valid if it is reasonably 25 related to legitimate penological interests. See O'Lone, 482 U.S. at 349 (quoting Turner v. 26 Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). The burden is on the prison ORDER TO AMEND OR SHOW CAUSE- 8 1 officials to prove that the restriction of the prisoner’s exercise of religion was reasonably related 2 to a legitimate penological objective. See Ashelman v. Wawrzaszek, 111 F.3d 674, 677–78 (9th 3 Cir.1997) (applying test from O’Lone and Turner to determine reasonableness of decision 4 denying Jewish prisoner’s request for an all kosher diet). 5 Mr. Barton has not sufficiently alleged a violation of his First Amendment rights. He has 6 7 failed to allege that in taking a specific action, a prison official or officials knowingly placed a 8 substantial burden on his ability to practice his religious beliefs. He may amend his complaint to 9 allege additional facts to support this claim. 10 5) 11 Mr. Barton alleges that the Sixth Amendment pertains to allegations relating to his 12 Sixth Amendment “attorney-client complete defense rights/privileges.” ECF No. 7, p. 10. However, the Sixth 13 Amendment right to counsel attaches only at the initiation of adversary criminal proceedings. 14 15 Davis v. United States, 512 U.S. 452, 456-57, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). In this 16 civil case, Mr. Barton is alleging only that “TCCF” denied him attorney-client visits “during a 17 critical stage,” and that prison officials seized and reviewed his confidential legal materials. See, 18 e.g., ECF No. 7, p. 5. While these allegations could possibly be construed as violations of Mr. 19 Bartons’ First Amendment rights to send and receive mail or interference with his access to 20 courts (as discussed above), he has failed to provide sufficient detail for the Court to consider 21 22 whether he has stated any such cognizable claim. 23 6) Substantive Due Process 24 Mr. Barton also alleges that his due process rights have been violated. ECF No. 7, p. 11. 25 To establish a Fourteenth Amendment due process violation, Plaintiff must allege a deprivation 26 of a liberty or property interest by the government without due process. Property rights are ORDER TO AMEND OR SHOW CAUSE- 9 1 defined by state law. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir.1993). 2 Further, to violate one’s right to substantive due process, government officials must exercise “the 3 most egregious official conduct,” such that their actions “shock the conscience.” City of 4 Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). 5 Mr. Barton has not identified a deprivation of either property or liberty interest caused by 6 7 any of the named defendants. Nor has he alleged egregious conduct that shocks the conscience. 8 Thus he has failed to allege the essential elements of a Fourteenth Amendment due process 9 claim. He may amend his complaint as to this claim. However, he should keep in mind that 10 “[w]here a particular Amendment ‘provides an explicit textual source of constitutional 11 protection’ against a particular sort of government behavior, ‘that Amendment, not the more 12 generalized notion of “substantive due process,” must be the guide for analyzing these claims.’” 13 Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham 14 15 v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). For example, the First 16 Amendment governs claims relating to the rights to receive and send mail, access the courts, and 17 exercise one’s religion. Thus, the First Amendment provides the explicit textual sources of 18 constitutional protection rather than a general claim of substantive due process. Mr. Barton is 19 ordered to show cause why his generalized due process claim should not be dismissed. 20 7) Eighth Amendment 21 22 Mr. Barton also alleges that his Eighth Amendment rights have been violated. ECF No. 23 7, p. 10. In this regard, he is advised that the Eighth Amendment imposes a duty upon prison 24 officials to provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832, 25 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). This duty includes ensuring that inmates receive 26 adequate food, clothing, shelter, and medical care, and taking reasonable measures to guarantee ORDER TO AMEND OR SHOW CAUSE- 10 1 the safety of inmates. Farmer, 511 at 832. Mr. Barton does not explain how denial of access to 2 his legal papers, counsel, religious books, and other supplies implicates Eighth Amendment 3 concerns. He must show cause why this claim should not be dismissed. 4 8) Separation of Powers 5 Mr. Barton alleges vaguely that “these specific officers and their respective state agencies 6 7 8 current practice, custom and policy clearly violates the Separation of Powers Doctrine.” ECF No. 7, at p. 11. The principle of separation of powers is fundamental to our system of government in 9 10 which the legislature is to enact laws of general application, and courts are to decide particular 11 cases arising under those laws. Legislative actions which contravene the principle of separation 12 of powers are unconstitutional. See Buckley v. Valeo, 424 U.S. 1, 118–24, 96 S.Ct. 612, 681–84, 13 46 L.Ed.2d 659 (1976) (per curiam); Chadha v. Immigration and Naturalization Service, 634 14 15 F.2d 408, 420 (9th Cir., 1980); In re Salary of Juvenile Director, 87 Wash.2d 232, 552 P.2d 163 16 (1976). It is not for the legislature to determine the rule of decision in a particular case, nor 17 otherwise unduly impact judicial power to decide pending cases. United States v. Klein, 80 U.S. 18 (13 Wall.) 128, 146–47, 20 L.Ed. 519 (1872). 19 20 Even if it is assumed that Mr. Barton has standing to bring a “separation of powers” claim in this § 1983 action, he has alleged no facts to support such a claim. Mr. Barton is 21 22 23 24 directed to show cause why this claim should not be dismissed. B. Motion for Appointment of Counsel – ECF No. 8 Plaintiff has also filed a motion for the appointment of counsel. ECF No. 8. A district 25 court has discretion under 28 U.S.C. 1915(e)(1) to designate counsel to represent an indigent 26 civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th ORDER TO AMEND OR SHOW CAUSE- 11 1 Cir. 1986). This requires evaluation of both the likelihood of success on the merits and the 2 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 3 involved. See id. Neither of these factors is dispositive and both must be viewed together before 4 deciding on a request for counsel. Having considered both these factors, the Court concludes 5 that exceptional circumstances requiring the appointment of counsel are not evident. 6 Although the Court has found that Plaintiff’s complaint suffers from deficiencies, 7 8 Plaintiff has demonstrated that he is able to articulate his claims in a clear fashion understandable 9 to this Court. This case does not involve complex facts, or law. This case will not require the use 10 of experts or any other in-depth analysis or argument. Plaintiff’s incarceration does not increase 11 the complexity of his case. “Most actions require development of further facts during litigation 12 and a pro se litigant will seldom be in a position to investigate easily the facts necessary to 13 support the case. If all that was required to establish successfully the complexity of the relevant 14 15 16 issues was a demonstration of the need for development of further facts, practically all cases would involve complex legal issues.” Wilborn, 789 F.2d at 1331. In addition, Plaintiff has made no showing that he is likely to succeed on the merits of his 17 18 claim. Therefore, his motion for counsel (ECF No. 8) is DENIED. 19 C. 20 Deadline to Amend Due to the deficiencies described above, the Court will not serve the complaint. Plaintiff 21 22 may file an amended complaint on or before June 28, 2013, that shall cure, if possible, the 23 above noted deficiencies. Alternatively, Plaintiff may show cause why this matter should not be 24 dismissed. 25 As explained above, the amended complaint must contain “a short and plain statement of 26 the claim showing that [Plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Plaintiff is advised ORDER TO AMEND OR SHOW CAUSE- 12 1 that he should make a short and plain statement of claims against the defendants. He may 2 do so by listing his complaints in separately numbered paragraphs. He should include facts 3 explaining how each defendant was involved in the denial of his rights. The amended 4 complaint shall be presented on the form provided by the Court. The amended complaint must 5 be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it may 6 7 not incorporate any part of the original complaint by reference, and it must be clearly labeled the 8 “Amended Complaint” and must contain the same cause number as this case. Plaintiff should 9 complete all sections of the court’s form. Plaintiff may attach continuation pages as needed but 10 11 12 13 may not attach a separate document that purports to be his amended complaint. An amended complaint supersedes the original complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on other grounds, Lacey v. Maricopa County,693 F.3d 896 (9th Cir. 2012). Therefore, the amended complaint must be complete in 14 15 itself without reference to the prior or superseded pleading. All causes of action alleged in the 16 original complaint that are not alleged in an amended complaint are waived. Forsyth, 114 F.3d 17 at 1474. 18 The Court will screen the amended complaint to determine whether it contains factual 19 allegations linking each defendant to the alleged violations of Plaintiff's rights. The Court will 20 not authorize service of the amended complaint on any Defendant who is not specifically linked 21 22 23 to the violation of Plaintiff's rights. If Plaintiff decides to file an amended civil rights complaint in this action, he is cautioned 24 that if the amended complaint is not timely filed or if he fails to adequately address the issues 25 raised herein no later than June 28, 2013, the Court will recommend dismissal of this action as 26 frivolous pursuant to 28 U.S.C. § 1915 and the dismissal will count as a “strike” under 28 U.S.C. ORDER TO AMEND OR SHOW CAUSE- 13 1 § 1915(g). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings three 2 or more civil actions or appeals which are dismissed on grounds they are legally frivolous, 3 malicious, or fail to state a claim, will be precluded from bringing any other civil action or 4 appeal in forma pauperis “unless the prisoner is under imminent danger of serious physical 5 injury.” 28 U.S.C. § 1915(g). 6 7 The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. 8 1983 civil rights complaint and for service, a copy of this Order and the General Order. 9 Plaintiff’s motion (ECF No. 8) is DENIED. 10 11 DATED this 31st day of May, 2013. A 12 13 Karen L. Strombom United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER TO AMEND OR SHOW CAUSE- 14

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