Perkins v. Crum et al
Filing
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND;First Amended Complaint due by 7/13/2011, signed by Magistrate Judge Gerald B. Cohn on 06/09/2011. (Attachments: # 1 Amended Complaint Form)(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LONNIE DONELL PERKINS
CASE NO. 1:10-cv-01115-GBC (PC)
Plaintiff,
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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
v.
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R. CRUM, et al.,
(ECF No. 1)
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Defendants.
FIRST AMENDED COMPLAINT DUE
/ WITHIN THIRTY DAYS
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SCREENING ORDER
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I.
PROCEDURAL HISTORY
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Plaintiff Lonnie Donell Perkins (“Plaintiff”) is a state prisoner proceeding pro se and
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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this
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action on June 21, 2010 and consented to Magistrate Judge jurisdiction on July 26, 2010.
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(ECF Nos. 1 & 5.) No other parties have appeared.
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Plaintiff’s Complaint is now before the Court for screening. For the reasons set forth
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below, the Court finds that Plaintiff has failed to state any claims upon which relief may be
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granted.
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II.
SCREENING REQUIREMENTS
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.
SUMMARY OF COMPLAINT
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Plaintiff alleges violations of his Eighth Amendment right to receive adequate
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medical care. Plaintiff names the following individuals as Defendants: R. Crum, J.R.
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Garza, Everett W. Fischer, G. Williams, M. Ruff, O.C. Harris, J. Ostrander, C. Pfeiffer, C.J.
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Chrones, N. Grannis, and J. Batchelor. Above referenced Defendants all worked at Kern
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Valley State Prison. Plaintiff also lists R. Clemons, C/O at Los Angeles County at
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Lancaster prison.
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Plaintiff alleges as follows: Defendant Clemons placed a false confidential
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disclosure form (CDC 1030) in Plaintiff’s prison file on June 15, 2006. On August 14, 2006,
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Plaintiff was placed in segregation for an investigation into his alleged association with a
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prison gang. Defendant Crum wrote a false validation report citing four sources which
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Plaintiff received on that same date. Defendant Garza approved and submitted the false
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report on September 5, 2006. Defendants Fischer, Williams, and Ruff were on the
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committee that reviewed the false report and accepted all four sources as valid on October
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4, 2006, validating Plaintiff as a gang member.
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On February 29, 2007, Defendant Harris interviewed Plaintiff about his inmate
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grievance and denied the grievance. Defendant Ostrander also denied the grievance. On
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April 24, 2007, Defendant Pfeiffer was assigned to investigate Plaintiff’s grievance at the
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second level of appeal, and denied it. It was also denied by Defendant Chrones. On July
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24, 2007, Defendant Batchelor denied Plaintiff’s appeal at the third level. It was also
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denied by Defendant Grannis.
Plaintiff seeks declaratory and injunctive relief, compensatory and punitive
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damages, and fees and costs.
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IV.
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ANALYSIS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.
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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).
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A.
Due Process Claim
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Plaintiff alleges that his due process rights under the Fourteenth Amendment were
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violated by Defendants Crum, Clemons, Garza, Fischer, Williams, and Ruff.
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The Due Process Clause protects prisoners from being deprived of liberty without
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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a
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cause of action for deprivation of procedural due process, a plaintiff must first establish the
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existence of a liberty interest for which the protection is sought. Id. Liberty interests may
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arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460,
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466–68 (1983). The Due Process Clause itself does not confer on inmates a liberty
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interest in being confined in the general prison population instead of administrative
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segregation. See id. With respect to liberty interests arising from state law, the existence
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of a liberty interest created by prison regulations is determined by focusing on the nature
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of the deprivation. Sandin v. Conner, 515 U.S. 472, 481–84 (1995). Liberty interests
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created by prison regulations are limited to freedom from restraint which “imposes atypical
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and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
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Id. at 484. The Court will assume without deciding that Plaintiff has alleged a liberty
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interest in not being validated as a gang member and placed in administrative segregation.
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Placement in administrative segregation, or the Security Housing Unit (“SHU”) if
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done for administrative rather than disciplinary purposes, requires notice to the prisoner,
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an opportunity for the prisoner to submit information, and non-adversarial review of the
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information supporting placement. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir.
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1986). A prison gang validation proceeding is subject to the “some evidence” standard
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where it is an administrative strategy rather than a disciplinary action. Bruce v. Ylst, 351
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F.3d 1283, 1287–88 (9th Cir. 2003) (citing Superintendent v. Hill, 472 U.S. 445, 455
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(1985)). There is no independent assessment of witness credibility or re-weighing of
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evidence; rather “the relevant question is whether there is any evidence in the record that
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could support the conclusion.” Hill, 472 U.S. at 455–56.
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Plaintiff states that he received the notice of the gang affiliation investigation on the
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same day that he was placed in segregation. He states that the reports were based on
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four sources. He states that several of the Defendants sat on a committee that reviewed
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the reports and validated Plaintiff’s gang status. As currently pleaded, Plaintiff received
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notice of the hearing and what evidence there was against him and he received a hearing.
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However, Plaintiff does not describe, in any detail, the hearing or evidence presented
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against him or whether he was given the opportunity to submit a statement.
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Therefore, Plaintiff fails to state a due process claim. Plaintiff will be given one
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additional opportunity to amend his complaint. In his amended complaint, Plaintiff must
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describe in greater detail his claim including, but not limited to, whether he was afforded
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the opportunity to state his views.
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B.
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Plaintiff appears to be alleging that his appeals were wrongly denied by Defendants
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Prison Appeals Procedure Claim
Harris, Ostrander, Pfeiffer, Chrones, Batchelor, and Grannis.
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Defendants’ actions in responding (or failing to respond) to Plaintiff’s appeals alone
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cannot give rise to any claims for relief under Section 1983 for violation of due process.
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Interests protected by the Due Process Clause may arise from two sources—the Due
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Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27
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(1976). There is no constitutional right to a prison administrative appeal or grievance
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system. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). However, California Code
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of Regulations, title 15 section 3084 et seq. grants state prisoners the right to a prison
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appeals process. The regulations are purely procedural—they require the establishment
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of a procedural structure for reviewing prisoner complaints and set forth no substantive
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standards. Instead, they provide for flexible appeal time limits, see Cal. Code Regs. tit. 15,
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§ 3084.6, and, at most, that “no reprisal shall be taken against an inmate or parolee for
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filing an appeal,” id. § 3084.1(d). A provision that merely sets procedural requirements,
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even if mandatory, cannot form the basis of a constitutionally cognizable liberty interest.
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Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see, e.g., Antonelli v. Sheahan, 81
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F.3d 1422, 1430 (7th Cir. 1996) (prison grievance procedure is procedural right that does
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not give rise to protected liberty interest requiring procedural protections of Due Process
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Clause).
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Accordingly, a prison official’s failure to process grievances, without more, is not
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actionable under Section 1983. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993);
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see also Ramirez, 334 F.3d at 860 (prisoner’s claimed loss of liberty interest in processing
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of his appeals does not violate due process because prisoners lack a separate
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constitutional entitlement to a specific prison grievance system). Although there is a First
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Amendment right to petition government for redress of grievances, there is no right to a
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response or any particular action. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)
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(“prisoner’s right to petition the government for redress . . . is not compromised by the
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prison’s refusal to entertain his grievance.”).
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Thus, because he has neither a liberty interest nor a substantive right to an inmate
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appeal, Plaintiff fails to state a claim in this regard. Because amendment of this claim
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would be futile, the Court advises Plaintiff that he would be well-served devoting his energy
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to pursuing his other claims.
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V.
CONCLUSION AND ORDER
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The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon
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which relief may be granted. The Court will provide Plaintiff time to file an amended
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complaint to address the potentially correctable deficiencies noted above. See Noll v.
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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must
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demonstrate that the alleged incident or incidents resulted in a deprivation of his
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constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual
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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
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Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally
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participated in the deprivation of his rights. Jones, 297 F.3d at 934.
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the
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amended complaint on claims and defendants discussed herein.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint
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be complete in itself without reference to any prior pleading. As a general rule, an
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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,
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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
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serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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The amended complaint should be clearly and boldly titled “First Amended Complaint,”
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refer to the appropriate case number, and be an original signed under penalty of perjury.
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Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file
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an amended complaint within thirty (30) days from the date of service of this
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order;
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refer to the case number 1:10-cv-1115-GBC (PC); and
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3.
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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.
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Plaintiff shall caption the amended complaint “First Amended Complaint” and
IT IS SO ORDERED.
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Dated:
1j0bbc
June 9, 2011
UNITED STATES MAGISTRATE JUDGE
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