Paul Jordan v. Debbie Asuncion et al, No. 2:2017cv01283 - Document 12 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The FAC is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Second Amended Complaint. (Attachments: # 1 Civil Rights Complaint Form (Blank), # 2 Notice of Dismissal Form (Blank)) (mz)
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Paul Jordan v. Debbie Asuncion et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PAUL JORDAN, 11 Case No. CV 17-1283 PSG (SS) Plaintiff, 12 MEMORANDUM DECISION AND ORDER v. 13 DISMISSING FIRST AMENDED DEBBIE ASUNCION, et al., 14 COMPLAINT WITH LEAVE TO AMEND Defendants. 15 16 17 I. 18 INTRODUCTION 19 Pending 20 before the Court is Plaintiff’s First Amended 21 Complaint, filed pursuant to 42 U.S.C. § 1983.1 (“FAC,” Dkt. No. 22 6). 23 screening of complaints in civil actions where a prisoner seeks 24 redress 25 § 1915A(a). This Court may dismiss such a complaint, or any portion 26 thereof, Congress mandates that district courts perform an initial from a before governmental service of entity process or if employee. the 28 complaint U.S.C. (1) is 27 This matter was assigned to the undersigned Magistrate Judge on April 25, 2018. 1 28 Dockets.Justia.com 1 frivolous or malicious, (2) fails to state a claim upon which 2 relief can be granted, or (3) seeks monetary relief from a defendant 3 who is immune from such relief. 4 also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) 5 (en banc). 6 Complaint is DISMISSED with leave to amend.2 28 U.S.C. § 1915A(b)(1-2); see For the reasons stated below, the First Amended 7 8 II. 9 ALLEGATIONS OF THE COMPLAINT 10 11 Plaintiff sues two employees of California State Prison-Los 12 Angeles County (“CSP-LAC”): (1) physician Dr. J. Marcelo, and 13 (2) Warden Debbie Asuncion. 14 individual and official capacities. Both Defendants are sued in both their (FAC at 3).3 15 16 The FAC alleges that on May 21, 2015, Plaintiff suffered a 17 back injury that caused him to collapse. 18 was taken to the prison medical (Id. at 8). clinic, where he Plaintiff informed 19 20 21 22 23 24 25 26 A magistrate judge may dismiss a complaint with leave to amend without the approval of a district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (“[T]he dismissal of a complaint with leave to amend is a non-dispositive matter.”). Consistent with McKeever, the Court concludes that its Order Dismissing First Amended Complaint with Leave to Amend is a non-dispositive Order. However, pursuant to Federal Rule of Civil Procedure 72, if Plaintiff disagrees, he may file an objection with the District Judge. See Bastidas v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015); see also Hunt v. Pliler, 384 F.3d 1118, 1124 (9th Cir. 2004) (“‘District court review of even these nondispositive matters . . . can be compelled upon objection of the party against whom the magistrate has ruled.’”) (quoting McKeever, 932 F.2d at 798). 2 27 The Court will cite to the FAC and its attached exhibits as though they were consecutively paginated. 3 28 2 1 Dr. Marcelo that his “back gave out and he was in a lot of pain.” 2 (Id.). 3 ready for a rectum exam.” 4 rectum exam have to do with my back?” 5 Plaintiff that the procedure he was “about to do would tell [him] 6 all [he] need[ed] to know.” 7 fingers in Plaintiff’s rectum, which Plaintiff claims constituted 8 sexual assault. Dr. Marcelo did not believe Plaintiff and told him to “get (Id.). (Id.). Plaintiff asked, “What does a (Id.). Dr. Marcello told Dr. Marcello then placed his (Id.). 9 10 Plaintiff was not told of any alternatives to the rectal exam, 11 and no such procedures were performed. (Id. at 16). For example, 12 Plaintiff was not given an x-ray, and he “was not advised of a 13 digital rectum exam as an alternate option to Marcelo[’s] sexual 14 assault with his fingers and the doctor did not offer the digital 15 exam [sic].”4 (Id.). 16 17 As a lasting consequence of this “assault,” Plaintiff claims 18 that whenever he is around medical personnel, his heart starts to 19 beat very fast and he sweats “profusely,” which often trigger 20 breathing difficulties and severe back pain. 21 physical injuries make Plaintiff become “extremely anxious,” and 22 he experiences “abnormal” feelings of anger towards health care 23 providers and depression. (Id. at 9-10). These (Id.). 24 25 26 27 28 It is possible that Plaintiff is unclear as to the meaning of “digital rectal exam.” “A digital rectal examination (DRE) is a simple procedure doctors use to examine the lower rectum and other internal organs. . . . To perform a DRE, your doctor will gently insert a gloved, lubricated finger into your anus. This allows them to feel for any abnormalities.” (See https://www.healthline.com/health/digital-rectal-exam#uses). 4 3 1 Plaintiff filed a grievance in which he complained of the 2 sexual assault. 3 the assault, prison officials denied the 602 and refused to return 4 it to Plaintiff, thereby depriving him of the ability to prove that 5 he had raised the issue in his first-level grievance.5 6 third level appeal was wrongfully denied on the false ground that 7 Plaintiff raised the sexual assault issue for the first time at 8 the Director’s Level of Review and failed to provide evidence that 9 he had attempted to address it at the lower level. 10 (Id. at 18). However, to avoid having to address Plaintiff’s (Id. at 18 & Exh. A at 21). 11 12 Plaintiff states that Warden Asuncion took no action against 13 prison employees who purposely attempted to obstruct his right to 14 file a grievance. 15 routine 16 addressing the complaint and allowing plaintiff to stipulate [to] 17 [sic] clearly determined facts is the moving force behind the 18 violation of the First Amendment.” (Id. at 18). Plaintiff contends 19 that 20 violation 21 supervision made false claims and withheld Plaintiff’s original illegal Warden (Id. at 11). Screening Asuncion . . . “is [because] out According to Plaintiff, “[t]he of plaintiff’s responsible for employee’s [sic] the of 602 First CDCR to avoid Amendment under her 22 23 24 25 26 27 28 “When a prisoner files an administrative appeal concerning an action by the CDCR, typically the appeal is filed using a ‘602’ form.” Pride v. Correa, 719 F.3d 1130, 1136 n.9 (9th Cir. 2013); see also Cal. Code Regs. tit. 15, § 3084.2. “Administrative remedies are not deemed exhausted until the appeal proceeds to a third level review, and administrative remedies are not deemed exhausted as to any new issue, information or person not included in the originally submitted . . . 602 form.” Parthemore v. Col, 221 Cal. App. 4th 1372, 1380 (2013) (citing Cal. Code Regs., tit. 15, § 3084.1(b)). 5 4 1 complaint of sexual abuse in order to not grant the 602 or address 2 the claim as a properly filed First Amendment right.” (Id. at 17). 3 4 Plaintiff raises claims for violations of his First, Eighth 5 and Fourteenth Amendment rights and for the state law tort of 6 negligence. (Id. at 5). He requests one million dollars in damages 7 from each Defendant. (Id. at 19). 8 9 III. 10 DISCUSSION 11 12 Under 28 U.S.C. § 1915A(b), the Court must dismiss the FAC 13 due to pleading defects. However, the Court must grant a pro se 14 litigant leave to amend his defective complaint unless “it is 15 absolutely clear that the deficiencies of the complaint could not 16 be cured by amendment.” 17 Cir. 2012) (citation and internal quotation marks omitted). 18 the reasons discussed below, it is not “absolutely clear” that at 19 least some of the defects of Plaintiff’s FAC could not be cured by 20 amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th For The FAC is therefore DISMISSED with leave to amend. 21 22 A. The FAC Fails To State A Fourteenth Amendment Claim 23 24 Plaintiff broadly alleges that his Fourteenth Amendment rights 25 were violated. However, he does not clearly state whether he is 26 bringing a Fourteenth Amendment claim against Dr. Marcelo, Warden 27 Asuncion, or both, or what the basis of his Fourteenth Amendment 28 claim might be. However, any purported Fourteenth Amendment claim 5 1 involving either the rectal examination or 2 the processing of Plaintiff’s grievance fails to state a claim. 3 4 1. Rectal Examination 5 6 Except in unusual circumstances, a prisoner generally has a 7 constitutional right to refuse unwanted medical care. 8 by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278 9 (1990) (“The principle that a competent See Cruzan person has a 10 constitutionally protected liberty interest in refusing unwanted 11 medical treatment may be inferred from our prior decisions.”); 12 Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 2002) (“The due 13 process clause of the Fourteenth Amendment substantively protects 14 a person’s rights to be free from unjustified intrusions to the 15 body, 16 sufficient information to exercise these rights intelligently.”) 17 (internal citations omitted); Runnels v. Rosendale, 499 F.2d 733, 18 735 (9th Cir. 1974) (“Allegations that prison medical personnel 19 performed major surgical procedures upon the body of an inmate, 20 without his consent and over his known objections, that were not 21 required to preserve his life or further a compelling interest of 22 imprisonment or prison security, may [be sufficient to state a 23 cognizable 24 Nonetheless, exceptions to this rule may apply for life and death 25 situations or for medical conditions that could impact the health 26 and well-being of other prisoners or prison staff. 27 Washington v. Harper, 494 U.S. 210, 222, 226 (1990). to refuse unwanted Fourteenth medical Amendment 28 6 treatment due and process to receive claim].”). See, e.g., 1 Here, Plaintiff fails to state a Fourteenth Amendment claim 2 with respect to his rectal examination because he does not allege 3 any facts showing that he ever communicated to Dr. Marcelo or any 4 other health care provider that he did not want to submit to the 5 procedure. 6 the purpose of the examination and its connection to his complaint 7 of back pain, but nothing more. 8 dismissed, with leave to amend. The FAC alleges that Plaintiff asked Dr. Marcelo about Accordingly, the FAC must be 9 10 2. Grievance Processing 11 12 Plaintiff appears to allege that his constitutional rights 13 were violated because his form 602 was denied and not returned to 14 him, thus depriving him of the ability to challenge the denial of 15 his claim at the Director’s Level on the ground that he had not 16 raised his assault claim in the 602. 17 18 Although a prisoner must “exhaust his administrative remedies 19 before filing a lawsuit concerning prison conditions,” Sapp v. 20 Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010) (citing 42 U.S.C. 21 § 1997e(a)), prison grievance procedures do not create substantive 22 rights enforceable under the Due Process Clause. 23 Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (“[A] state’s inmate 24 grievance 25 protected by the Due Process Clause.”). 26 a constitutional right to any particular grievance procedure. 27 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates 28 lack a separate constitutional entitlement to a specific prison procedures do not give 7 rise to a See Antonelli v. liberty interest A prisoner does not have See 1 grievance procedure.”) (citing Mann v. Adams, 855 F.2d 639, 640 2 (9th Cir. 1988)). 3 to any particular grievance outcome. 4 F.3d 371, 374 (5th Cir. 2005) (an inmate “does not have a federally 5 protected liberty interest in having . . . grievances resolved to 6 his satisfaction”); Grenning v. Klemme, 34 F. Supp. 3d 1144, 1157 7 (E.D. Wash. 2014) (“[A plaintiff] cannot state a constitutional 8 claim based on his dissatisfaction with the grievance process. 9 Where the Nor does a prisoner have a constitutional right defendant’s only conduct is See Geiger v. Jowers, 404 involvement ‘the denial in of the allegedly 10 unconstitutional administrative 11 grievances or the failure to act, the defendant cannot be liable 12 under § 1983.’”) (quoting Shehee v. Luttrell, 1999 F.3d 295, 300 13 (6th Cir. 1999)). 14 a grievance, without more, is insufficient to establish liability 15 under section 1983. 16 Cir. 1993). Moreover, a prison official’s failure to process See Buckey v. Barlow, 997 F.2d 494, 495 (8th 17 18 Improper screening of a grievance or other irregularities in 19 the grievance’s processing, whether “innocent or otherwise,” may 20 provide a ground for excusing a prisoner from the Prison Litigation 21 Reform Act’s exhaustion requirement. 22 1217, 1226 (9th Cir. 2010). 23 improprieties will not provide the basis for a due process claim. 24 Accordingly, the FAC must be dismissed, with leave to amend. Nunez v. Duncan, 591 F.3d However, as a general matter, these 25 26 27 28 8 1 B. The FAC Fails To Allege A First Amendment Claim 2 3 As a rule, “prisoners have a First Amendment right to file 4 prison grievances.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th 5 Cir. 2009); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). 6 “Retaliation against prisoners for their exercise of this right 7 is itself a constitutional violation, and prohibited as a matter 8 of 9 (citing Rhodes, 408 F.3d at 567). ‘clearly established law.’” Brodheim, 584 F.3d at 1269 10 11 12 There are five basic elements for a viable claim of First Amendment retaliation in the prison context: 13 14 (1) An assertion that a state actor took some adverse 15 action 16 prisoner’s protected conduct, and 17 (4) 18 Amendment rights, and (5) the action did not reasonably 19 advance a legitimate correctional goal. against chilled an inmate the (2) inmate’s because of (3) that that such action exercise of his First 20 21 Brodheim, 584 F.3d at 1269 (quoting Rhodes, 408 F.3d at 567-68). 22 The prisoner must establish a specific link between the alleged 23 retaliation and the exercise of a constitutional right. 24 v. Rowland, 65 F.3d 802, 807-08 (9th Cir. 1995). 25 threat 26 retaliation 27 procedures.’” 28 v. Moore, 39 F.3d 216, 218 (8th Cir. 1994)). of retaliation for an is sufficient inmate’s use Brodheim, 584 F.3d at 9 injury of 1270 See Pratt Even just “‘a if prison made in grievance (quoting Burgess 1 Plaintiff fails to state a First Amendment claim because 2 the FAC does not allege that prison officials took or even 3 threatened to take any adverse action against him for having 4 filed grievances and appeals. 5 was denied does not establish a First Amendment retaliation claim. 6 Compare Entler v. Gregoire, 872 F.3d 1031, 1036, 1038 (9th Cir. 7 2017) (allegation that inmate was disciplined for threatening to 8 file lawsuits, resulting in “fifteen days of lost ‘big yard’ and 9 gym time” and “five more days of cell confinement,” adequately 10 stated First Amendment retaliation claim); Klein v. Williams, 714 11 F. App’x 631, 635 (9th Cir. 2017) (allegation that prison official 12 threatened to fire inmate from his job for filing a grievance 13 adequately stated a First Amendment claim). 14 must be dismissed, with leave to amend. The fact that Plaintiff’s grievance Accordingly, the FAC 15 16 C. The FAC Fails To State A Negligence Claim 17 18 Plaintiff alleges that Dr. Marcelo was negligent because he 19 had a duty to use due care in dealing with his patients, which he 20 breached by inserting his fingers into Plaintiff’s rectum after 21 Plaintiff had complained of back pain. 22 alleges that Warden Asuncion was negligent because she had a duty 23 to 24 Plaintiff’s First Amendment rights, which she breached by failing 25 to punish the employees who violated Plaintiff’s rights. 26 11). 27 from any substantive defects in Plaintiff’s negligence claims, the ensure that her employees would (See FAC at 9). not conspire Plaintiff to Negligence is a state law cause of action in tort. 28 10 violate (Id. at Apart 1 FAC does not satisfy the procedural requirements for alleging state 2 law tort claims against governmental actors. 3 4 Under the California Government Claims Act (“CGCA”), a 5 plaintiff may not bring an action for damages against a public 6 employee or entity unless he first presents a written claim to the 7 government within six months of the incident. 8 Bernadino Cnty., Dept. of Public Social Servs., 237 F.3d 1101, 1111 9 (9th Cir. 2001) (CGCA requires the “timely presentation of a 10 written claim and the rejection of the claim in whole or in part” 11 before a plaintiff can file suit); see also Cal. Gov’t Code § 945.4 12 (no suit for money damages may be brought against a public entity 13 until a written claim is presented to the public entity, and is 14 acted upon or rejected by the board). 15 administrative remedy [under the CGCA] is a jurisdictional, not a 16 procedural, defect.” 17 App. 3d 878, 890 (1985); see also Cornejo v. Lightbourne, 220 Cal. 18 App. 4th 932, 938 (2013) (“Ordinarily, filing a claim with a public 19 entity pursuant to the Claims Act is a jurisdictional element of 20 any cause of action for damages against the public entity . . .”). See Mabe v. San “The failure to exhaust an Miller v. United Airlines, Inc., 174 Cal. 21 22 The CGCA’s claim presentation requirement is separate from, 23 and is not satisfied by, internal prison grievance processes. 24 Hendon v. Ramsey, 528 F. Supp. 2d 1058, 1069–70 (S.D. Cal. 2007) 25 (“Although Plaintiff has demonstrated successfully that he utilized 26 the prison grievance process to exhaust his federal claims by 27 filing an inmate appeal, and has attached documentation in the form 28 of his CDC 602 form and administrative responses, these documents 11 See 1 do not satisfy the [California Government Claims Act] with respect 2 to his state law negligence claims.”). 3 the Government Claims Act must be presented to the California 4 Victim Compensation and Government Claims Board for all claims for 5 money or damages made against the state.” 6 813063, at *5 (Cal. Ct. App. Mar. 3, 2014) (citing Cal. Gov’t. 7 Code, § 905.2(a), (b)); Smith v. Cobb, 2018 WL 1141507, at *4 (S.D. 8 Cal. Mar. 2, 2018) (state prisoner tort claims under the CGCA “must 9 be made to the Victim Compensation and Government Claims Board”); 10 Apollo v. Gyaami, 167 Cal. App. 4th 1468, 1473 (2008) (referring 11 to state prisoner’s proper presentation of tort claim to California 12 Victim Compensation and Government Claims Board). Instead, “[a] claim under In re Jones, 2014 WL 13 14 Furthermore, a plaintiff must affirmatively allege in the 15 complaint compliance 16 requirement, or explain why compliance should be excused. 17 v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). 18 Plaintiff does not allege compliance with the claims presentation 19 requirement of the CGCA, or facts warranting excusal from that 20 requirement, 21 against either Defendant. 22 with leave to amend. 23 \\ 24 \\ and with therefore the fails CGCA’s to state claims a presentation Mangold negligence claim Accordingly, the FAC must be dismissed, 25 26 27 28 12 1 D. 2 The FAC Fails To Allege A Claim For Supervisory Liability Against Warden Asuncion 3 4 To demonstrate a civil rights violation, a plaintiff must show 5 either direct, personal participation, or some sufficient causal 6 connection 7 constitutional violation. 8 06 (9th Cir. 2011). 9 section between 1983 the official’s conduct and the alleged See Starr v. Baca, 652 F.3d 1202, 1205- Government officials are not liable under simply because their subordinates engaged in 10 unconstitutional conduct. 11 676 (2009). 12 allege 13 constitutional violation, a “sufficient causal connection” to the 14 violation may be shown where the supervisor “set ‘in motion a 15 series of acts by others, or knowingly refused to terminate [such 16 acts], which he knew or reasonably should have known, would cause 17 others to inflict the constitutional injury.’” 18 Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (quoting Larez v. City 19 of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)); see also 20 Preschooler II v. Clark County Bd. of Trustees, 479 F.3d 1175, 1183 21 (9th Cir. 2007) (a supervisor may be held accountable only “for 22 his own culpable action or inaction in the training, supervision, 23 or 24 constitutional deprivations of which the complaint is made, or for 25 conduct that showed a reckless or callous indifference to the 26 rights of others”). 27 \\ 28 \\ Where a plaintiff sues a supervisor but does not that control See Ashcroft v. Iqbal, 556 U.S. 662, of the his supervisor directly subordinates, 13 for his participated in the Levine v. City of acquiescence in the 1 Here, Plaintiff simply alleges that Warden Asuncion is liable 2 for the alleged mishandling of Plaintiff’s grievances because she 3 is “[r]esponsible for [the] operation of prison employees and 4 w[e]lfare of inmates of the prison.” 5 insufficient basis to show supervisory liability under § 1983. 6 Accordingly, the FAC must be dismissed, with leave to amend. (FAC at 3). This is an 7 8 9 E. The FAC Fails To State A Claim Against Defendants In Their Official Capacity 10 11 Plaintiff sues Defendants for damages in both their official 12 and individual capacities. (Id.). State employees sued in their 13 individual capacity may be liable for money damages. 14 Melo, 502 U.S. 21, 27 (1991). 15 capacity claims are barred by the Eleventh Amendment and cannot 16 proceed to the extent Plaintiff seeks only money damages. Hafer v. However, Plaintiff’s official- 17 18 Pursuant to the Eleventh Amendment, a state and its official 19 arms are immune from suit under section 1983. 20 496 U.S. 356, 365 (1990); Brown v. Cal. Dept. of Corrections, 554 21 F.3d 747, 752 (9th Cir. 2009) (“California has not waived its 22 Eleventh Amendment immunity with respect to claims brought under 23 § 1983 in federal court”). 24 his or her official capacity . . . is no different from a suit 25 against the State itself.” 26 25 (9th Cir. 2007) (citation omitted). 27 sued in their official capacity under § 1983 are generally entitled 28 to immunity. Id. at 825. Howlett v. Rose, “[A] suit against a state official in Flint v. Dennison, 488 F.3d 816, 824Therefore, state officials However, state officials sued in their 14 1 official capacity are considered “person[s]” when they are sued 2 for prospective injunctive relief under section 1983, and the 3 Eleventh Amendment does not bar such claims. 4 v. Graham, 473 U.S. 159, 167 n.14 (1985)). Id. (citing Kentucky 5 6 To the extent that Defendants, both of whom are state 7 employees, are sued for damages in their official capacity, this 8 action is functionally a suit against the State of California. 9 Plaintiff does not seek prospective injunctive relief that might 10 warrant an exception to the Eleventh Amendment bar. Accordingly, 11 Plaintiff’s claims for money damages against Defendants in their 12 official capacity are barred by the Eleventh Amendment and must be 13 dismissed. 14 15 F. The FAC Violates Federal Rule of Civil Procedure 8 16 17 Federal Rule of Civil Procedure 8(a)(2) requires that a 18 complaint contain “‘a short and plain statement of the claim 19 showing that the pleader is entitled to relief,’ in order to ‘give 20 the defendant fair notice of what the . . . claim is and the 21 grounds upon which it rests.’” 22 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)). 23 may be violated when a pleading “says too little,” and “when a 24 pleading says too much.” 25 Cir. 2013) (emphasis in original). Bell Atlantic Corp. v. Twombly, Rule 8 Knapp v. Hogan, 738 F.3d 1106, 1108 (9th 26 27 Here, the FAC violates Rule 8 because Plaintiff does not 28 clearly identify the nature of each of the legal claims he is 15 1 bringing, the specific facts giving rise to each claim, or the 2 specific 3 brought. 4 respond to the FAC. 5 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (a complaint 6 violates Rule 8 if a defendant would have difficulty understanding 7 and responding to the complaint). 8 not required to provide evidence supporting his claims at this 9 stage of the litigation, the exhibits attached to the FAC appear 10 unnecessary. Finally, it appears that the FAC consists of a largely 11 verbatim copy of the original Complaint’s claims and allegations 12 against Dr. Marcelo and Warden Asuncion, which the Court found 13 defective, followed by a new section entitled “additional facts.” 14 (FAC at 14-16). 15 top of defective allegations did not and could not correct the 16 underlying 17 Plaintiff is cautioned that any future amended complaint must not 18 repeat the allegations of either the original or First Amended 19 Complaint that the Court explained were defective. 20 the FAC is dismissed, with leave to amend. Defendant or Defendants against whom each claim is Without more specific information, Defendants cannot See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Moreover, because Plaintiff is However, merely pleading “additional facts” on deficiencies in the claims as originally pled. Accordingly, 21 22 IV. 23 CONCLUSION 24 25 For the reasons stated above, the FAC is dismissed with leave 26 to amend. If Plaintiff still wishes to pursue this action, he is 27 granted thirty (30) days from the date of this Memorandum and Order 28 within which to file a Second Amended Complaint. 16 In any amended 1 complaint, the Plaintiff shall cure the defects described above. 2 Plaintiff shall not include new defendants or new allegations that 3 are not reasonably related to the claims asserted in the original 4 complaint. 5 in itself and shall bear both the designation “Second Amended 6 Complaint” and the case number assigned to this action. 7 not refer in any manner to any previously filed complaint in this 8 matter. The Second Amended Complaint, if any, shall be complete It shall 9 10 In any amended complaint, Plaintiff should confine his 11 allegations to those operative facts supporting each of his claims. 12 Plaintiff 13 Procedure 8(a), all that is required is a “short and plain statement 14 of the claim showing that the pleader is entitled to relief.” 15 Plaintiff is strongly encouraged to utilize the standard civil 16 rights complaint form when filing any amended complaint, a copy of 17 which is attached. 18 identify the nature of each separate legal claim and make clear 19 what specific factual allegations support each of his separate 20 claims, and the specific individual or individuals against whom 21 each claim is brought. 22 his statements concise and to omit irrelevant details. 23 necessary for Plaintiff to cite case law, include legal argument, 24 or attach exhibits at this stage of the litigation. 25 also advised to omit any claims for which he lacks a sufficient 26 factual basis. 27 \\ 28 \\ is advised that pursuant to Federal Rule of Civil In any amended complaint, Plaintiff should Plaintiff is strongly encouraged to keep 17 It is not Plaintiff is 1 Plaintiff is explicitly cautioned that the failure to timely 2 file a Second Amended Complaint, or the failure to correct the 3 deficiencies described above, will result in a recommendation that 4 this action be dismissed with prejudice for failure to prosecute 5 and obey court orders pursuant to Federal Rule of Civil Procedure 6 41(b). 7 to pursue this action, 8 Notice of Dismissal in accordance with Federal Rule of Civil 9 Procedure 41(a)(1). 10 Plaintiff is further advised that if he no longer wishes he may voluntarily dismiss it by filing a A form Notice of Dismissal is attached for Plaintiff’s convenience. 11 12 DATED: May 7, 2018 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 NOTICE 17 18 19 20 21 22 23 24 25 Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court. 26 27 28 18
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