(PC) Gardner v. Stanislaus County Sheriff's Department et al, No. 1:2017cv01369 - Document 18 (E.D. Cal. 2018)
Court Description: Screening Order; FINDINGS and RECOMMENDATIONS That Plaintiff Proceed on the Cognizable Claim and That Non-Cognizable Claims be Dismissed With Leave to Amend, signed by Magistrate Judge Jeremy D. Peterson on 10/25/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY MICHAEL GARDNER, Plaintiff, 12 v. 13 14 STANISLAUS COUNTY SHERIFF’S DEPARTMENT, et al., 15 Defendants. Case No. 1:17-cv-01369-DAD-JDP SCREENING ORDER FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF PROCEED ON THE COGNIZABLE CLAIM AND THAT NONCOGNIZABLE CLAIMS BE DISMISSED WITH LEAVE TO AMEND 16 OBJECTIONS, IF ANY, DUE IN 14 DAYS 17 ECF No. 1 18 19 20 Plaintiff Jeremy Michael Gardner is a state prisoner proceeding without counsel and in forma 21 pauperis in this civil rights action brought under 42 U.S.C. § 1983. Plaintiff’s complaint is before 22 the court for screening under 28 U.S.C. § 1915A. The court finds that plaintiff has stated a 23 cognizable excessive force claim against defendant Deputy P. Boles. The court will recommend 24 that plaintiff’s remaining claims be dismissed without prejudice and that he be granted leave to 25 amend the complaint. 26 I. 27 A district court is required to screen a prisoner’s complaint seeking relief against a 28 SCREENING AND PLEADING REQUIREMENTS governmental entity, its officer, or its employee. See 28 U.S.C. § 1915A(a). The court must 1 1 identify any cognizable claims and dismiss any portion of a complaint that is frivolous or 2 malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a 3 defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 4 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 5 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 6 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 7 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 9 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 10 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 11 1038 (9th Cir. 2016) (quoting Skinner v. Switzer, 562 U.S. 521, 530 (2011)). Instead, what 12 plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to 13 relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) 14 (citations omitted). 15 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 16 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint only “if it 17 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 18 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017) 19 (quoting Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)). 20 21 II. COMPLAINT The court draws the following facts from plaintiff’s verified complaint, ECF No. 1, and 22 accepts them as true for purposes of screening. Plaintiff is incarcerated at the Public Safety 23 Center (“PSC”) in Modesto, California. Id. at 1. Plaintiff names the following individual 24 custodial officers of PSC as defendants: Deputy P. Boles, Deputy Majusiak, and Facility Training 25 Officer (“FTO”) Flores. Id. at 2. Plaintiff also names an institutional defendant, the Stanislaus 26 Sheriff’s Custodial Division at PSC. Id. Plaintiff seeks to bring three claims relating to his 27 confinement at PSC: (1) excessive force; (2) interference with his mail; and (3) deprivation of 28 nutrition. Id. at 3-8. 2 1 A. Claim I: Excessive Force 2 Plaintiff alleges that on November 7, 2016, he had a dispute with an inmate two cells 3 away from plaintiff’s cell. Id. at 3. Two custodial officers, Deputy P. Boles and Deputy 4 Majusiak, ultimately intervened. Id. Plaintiff’s antagonist informed the officers that plaintiff’s 5 cell contained contraband, and the officers made plaintiff “cuff up” and exit his cell so that they 6 could conduct a search. Id. Plaintiff complied and was “directed to the booking room, where 7 [he] was seated in a chair.” Id. C.O. Majusiak and F.T.O. Flores kept watch over plaintiff in the 8 booking room while C.O. Boles searched plaintiff’s cell. Id. When C.O. Boles returned to the 9 booking room, he “immediately provok[ed plaintiff] into argument by pointing his finger in 10 [plaintiff’s] face and calling [him] a ‘liar.’” Id. Plaintiff then rose from his chair “to further [his] 11 disagreement appropriately, and upon [his] arise, [he] made contact with C.O. Boles[’s] chin with 12 [his] head.” Id. This contact was unintentional and resulted from C.O. Boles’s close proximity to 13 plaintiff. Id. at 3-4. Nonetheless, the correctional officers interpreted plaintiff’s action as a 14 “threat rather than [an] accident, and la[i]d hold of [plaintiff].” Id. at 4. C.O. Boles punched 15 plaintiff with a “closed fist[] three times in the head and side of face.” Id. The custodial officers 16 “then threw [plaintiff] to the ground, where [he] cooperated in submission.” Id. “Numerous” 17 additional correctional officers then came to the booking room. Id. The officers decided to 18 relocate plaintiff, and when they lifted him from the floor, “they used unnecessary means by 19 pulling [him] up by [his] hair.” Id. The officers then dragged plaintiff to “the facility medical 20 location,” where he was treated for his injuries. Id. He did not mention to the treating nurse that 21 he had been struck by a closed fist because he was still in shock. Id. While he was examined, an 22 officer “stood on [plaintiff’s] bare right root with [an] immense amount of his weight causing [a] 23 hardly tolerable amount of pain.” Id. 24 Apparently related to the above-described incident, “[a] fictitious report was composed by 25 Deputy Boles containing claims of false statements made by [plaintiff] in order to favor [the 26 officers’] actions and misconduct.” Id. 27 28 3 1 B. Claim II: Mail Disruption 2 Plaintiff alleges that from February 6, 2017 to June 29, 2017 plaintiff has not received 3 answers to 26 letters, 6 of which were legal mail. Id. at 5. Plaintiff suspects that “on more than 4 one occasion” he has been the “victim of mail prejudice[] due to intentional negligence by the 5 Custodial Staff/Officers, during their distribution and fo[r]warding duties.” Id. In May 2017, 6 plaintiff alleges that his “suspicion was affirmed of such negligence when [he] rec[ei]ved mail 7 addressed to another inmate.” Id. Also in May, an inmate named Mathew Benak approached 8 plaintiff and informed him that Benak had received plaintiff’s mail consisting of medical 9 documents. Id. Benak also informed plaintiff that when Benak “advised the officer distributing 10 the mail of his error, the officer responded by calling [plaintiff] a negative name (Asshole), and 11 that he was aware of his intentional misguidance and by refusing to recollect the mail in order to 12 correct the situation, he left the mail in Mathew Benak’s possession.” Id. Plaintiff has 13 “illuminated the situation numer[]ous times on many levels and [is] without satisfactory 14 resolution.” Id. at 5-6. 15 C. Claim III: Deprivation of Nutrition 16 Plaintiff alleges the following claim against the “Stanislaus County Sheriff’s Department 17 Custodial Division, Nutrition Administrator and those of it[]s employ.” Id. at 7. Plaintiff alleges 18 that he frequently receives “meal tr[a]y[]s that have not been properly filled to their intended 19 capacities.” Id. As an example, he describes the supper placed in his cell on August 2, 2017: “I 20 anticipated amongst my return to my one[-]man cell finding an adequately proportioned tr[a]y, 21 however, to my disappointment I found the designated compartment reserved for vegetables 22 (pea[]s) was only 1/5 full—obvious[ly] not to be the intended measurement carefully calculated 23 by the dietitian.” Id. Plaintiff further alleges that “on numerous occasions” he has been given 24 “misproportioned meals, and declared a need for exchange for a properly measured course” only 25 to be denied. Id. He has complained to the “kitchen staff” to no avail. Id. “The inadequate 26 tr[a]y[]s continued to be misproportioned and in tantamount need of correction for it is no small 27 matter when one’s nutritional health is in the balance.” Id. Plaintiff has “documentation of 28 4 1 [medical] attention that had arose from the negligence.” Id. Plaintiff finally alleges that “a 2 dietitian has carefully calculated the meal[]s to meet a standard guideline in requirement[]s vital 3 for human consumption, however that is not what was being produced and provided by industry.” 4 Id. 5 III. 6 DISCUSSION Section 1983 allows a private citizen to sue for the deprivation of a right secured by 7 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To 8 state a claim under § 1983, a plaintiff must allege that a person, while acting under color of state 9 law, personally participated in the deprivation of a right secured by federal law. See Soo Park v. 10 Thompson, 851 F.3d 910, 918 (9th Cir. 2017). A defendant personally participates in a 11 deprivation “if he does an affirmative act, participates in another’s affirmative acts or omits to 12 perform an act which he is legally required to do that causes the deprivation of which complaint is 13 made.” Atayde v. Napa State Hosp., 255 F. Supp. 3d 978, 988 (E.D. Cal. 2017) (quoting Lacey v. 14 Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012)). Vague and conclusory allegations of 15 personal involvement in an alleged deprivation do not suffice. Id. 16 Local governmental units, such as counties or municipalities, are considered “persons” 17 within the meaning of § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989); 18 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 & n.54 (1978). 19 Notwithstanding, municipal departments and sub-units, including police departments, are 20 generally not considered “persons” within the meaning of § 1983. United States v. Kama, 394 21 F.3d 1236, 1239 (9th Cir. 2005) (Ferguson, J., concurring) (findings municipal police 22 departments and bureaus are generally not considered “persons” within the meaning of 42 U.S.C. 23 § 1983); Vance v. County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996) (holding 24 that “naming a municipal department as a defendant is not an appropriate means of pleading a § 25 1983 action against a municipality,” and dismissing the Santa Clara Department of Corrections 26 from the action); Brockmeier v. Solano County Sheriff’s Dept., 2006 WL 3760276, *4 (E.D. Cal. 27 2006) (finding that sheriff’s department is a municipal department and not a proper defendant for 28 purposes of plaintiff’s § 1983 claims). 5 A governmental entity cannot be liable “solely because it employs a tortfeasor—or, in 1 2 other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” 3 Monell, 436 U.S. at 691 (1978). However, a governmental entity can be liable under § 1983 4 when an injury is inflicted by the “execution of a government’s policy or custom, whether made 5 by its lawmakers or by those whose edicts or acts may fairly be said to represent policy.” Id. at 6 694. 7 Here, the Custodial Division of the Stanislaus Sheriff’s Department is not a proper 8 defendant because it is a sub-division of the County of Stanislaus.1 However, the rest of the 9 named defendants—Deputy P. Boles, Deputy Majusiak, and FTO Flores—are state prison 10 employees who, accepting plaintiff’s allegations as true, can be inferred to have acted under color 11 of state law. See Paeste v. Gov’t of Guam, 798 F.3d 1228, 1238 (9th Cir. 2015) (“[G]enerally, a 12 public employee acts under color of state law while acting in his official capacity or while 13 exercising his responsibilities pursuant to state law” (quoting West v. Atkins, 487 U.S. 42, 50 14 (1988)).). 15 Of the three properly named defendants, plaintiff plausibly alleges that Deputy P. Boles 16 personally participated in the alleged deprivations. Plaintiff alleges that Boles punched plaintiff 17 with a “closed fist[] three times in the head and side of face” and composed a “fictitious report” 18 that attributed “false statements” to plaintiff. ECF No. 1. 19 Plaintiff does not plausibly allege that defendants Deputy Majusiak or FTO Flores either 20 personally participated in or caused the alleged deprivations. Plaintiff alleges that these two 21 officers monitored plaintiff in the booking room while Boles searched his cell. Id. at 3. After the 22 interaction between Boles and plaintiff became physical, plaintiff alleges that custodial officers 23 “threw [him] to the ground” and ultimately lifted him by his hair, id. at 4, but plaintiff does not 24 identify Majusiak or Flores as perpetrators. Plaintiff’s general allegations against “custodial 25 26 27 28 1 Plaintiff will be given leave to file an amended complaint that names a proper defendant. If plaintiff names a local governmental unit, he should consider explaining whether any injuries he suffered were inflicted by the “execution of [the] government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent policy.” Monell, 436 U.S. at 694. 6 1 officers” do not state claims against Deputy Majusiak or FTO Flores for constitutional violation 2 under § 1983. The court will thus recommend that the claims against defendants Deputy 3 Majusiak and FTO Flores be dismissed with leave to amend. The remaining question is whether 4 defendant Boles’s alleged actions violated federal law. 5 A. Claim I: Excessive Force 6 The Eighth Amendment’s prohibition against cruel and unusual punishment forbids 7 excessive force in prison. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). An excessive 8 force claim “ultimately turns on ‘whether force was applied in a good faith effort to maintain or 9 restore discipline or maliciously and sadistically for the very purpose of causing harm.’” 10 Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 795 (9th Cir. 2018) (quoting Hudson v. 11 McMillian, 503 U.S. 1, 6 (1992)). To decide whether a defendant used excessive force, a court 12 ordinarily considers “(1) the need for application of force; (2) the extent of injuries; (3) the 13 relationship between the need for force and the amount of force used; (4) the nature of the threat 14 reasonably perceived by prison officers; and (5) efforts made to temper the severity of a forceful 15 response.” Lyons v. Busi, 566 F. Supp. 2d 1172, 1186-87 (E.D. Cal. 2008) (quoting Hudson, 503 16 U.S. at 7). A district court must give deference to prison officials’ decision to use force when 17 the use of force pertains to security and order in prison. See Whitley v. Albers, 475 U.S. 312, 18 321-22 (1986). 19 Here, accepting plaintiff’s allegations as true, the court finds that he has stated an 20 excessive force claim against defendant Boles. Plaintiff alleges that when he stood from a chair, 21 his head accidentally bumped Boles’s chin, and Boles reacted by punching plaintiff with a 22 “closed fist[] three times in the head and side of face.” ECF No. 1, at 4. Plaintiff alleges that the 23 punches caused him physical and mental harm. Id. at 3. 24 B. Claim II: Mail Interference 25 Plaintiff has not properly named a defendant against whom his mail-interference claim 26 may be asserted. Nonetheless, considering plaintiff’s pro se status, the court will explain certain 27 of the legal standards pertaining to mail-interference claims. Plaintiff should consider the 28 following standards if he reasserts this claim in an amended complaint against a properly-named 7 1 2 defendant. Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. Paff, 3 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). The 4 inspection for contraband of non-legal mail does not violate a prisoner’s constitutional rights. 5 See id., 52 F.3d at 265-66 (upholding inspection of outgoing mail); Smith v. Boyd, 945 F.2d 1041, 6 1043 (8th Cir. 1991) (upholding inspection of incoming mail); Gaines v. Lane, 790 F.2d 1299, 7 1304 (7th Cir. 1986) (upholding inspection of outgoing and incoming mail). Prison officials also 8 may institute procedures for inspecting legal mail, for example, mail sent between attorneys and 9 prisoners, see Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) (holding that a state may 10 constitutionally require that mail from an attorney to a prisoner be identified as such and that the 11 attorney’s name and address appear on the communication), and mail sent from prisoners to the 12 courts, see Royse v. Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986) (outgoing mail to 13 court). But the opening and inspecting of legal mail outside the presence of the prisoner may 14 have an impermissible chilling effect on the constitutional right to petition the 15 government. See O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir.1996) (citing Laird v. 16 Tatum, 408 U.S. 1, 11 (1972)). 17 Isolated incidents of mail interference without any evidence of improper motive or 18 resulting interference with the right to counsel or access to the courts do not give rise to a 19 constitutional violation. See Meador v. Pleasant Valley State Prison, 312 F. App’x 954, 955 (9th 20 Cir. 2009) (holding that prison officials’ erroneous opening of one piece of legal mail “without a 21 showing of actual injury or improper motive, cannot by itself establish a violation of his right of 22 access to the courts”); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (same). 23 24 25 26 27 If plaintiff believes that defendants interfered with his mail as retaliation for plaintiff engaging in protected conduct, he may have a retaliation claim: Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 28 8 1 2 rights, and (5) the action did not reasonably advance a legitimate correctional goal. 3 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accord Pratt v. 4 Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (holding that prisoner suing prison officials under 5 § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 6 rights and that the retaliatory action did not advance legitimate penological goals, such as 7 preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) 8 (per curiam) (same). 9 The prisoner must prove all elements of a viable retaliation claim, including the absence 10 of legitimate correctional goals for the conduct about which he complains. Pratt, 65 F.3d at 806. 11 Retaliation claims brought by prisoners must be evaluated in light of concerns over “excessive 12 judicial involvement in day-to-day prison management, which ‘often squander[s] judicial 13 resources with little offsetting benefit to anyone.’” Id. at 807 (quoting Sandin v. Conner, 515 14 U.S. 472, 482 (1995)). In particular, courts should “‘afford appropriate deference and flexibility’ 15 to prison officials in the evaluation of proffered legitimate penological reasons for conduct 16 alleged to be retaliatory.” Id. (quoting Sandin, 515 U.S. at 482). 17 The prisoner also must show that the constitutionally-protected activity in which he was 18 engaged was a substantial or motivating factor for the alleged retaliatory action. See Hines v. 19 Gomez, 108 F.3d 265, 267-68 (9th Cir.1997) (inferring retaliatory motive from circumstantial 20 evidence). The prisoner need not prove a total chilling of his First Amendment rights to state a 21 claim for retaliation; that his First Amendment rights were chilled, though not necessarily 22 silenced, is enough. Rhodes, 408 F.3d at 569. But the prisoner at least must allege that he 23 suffered harm, since harm that is more than minimal will almost always have a chilling 24 effect. Id. at 567-68 n.11; see Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000) (holding that a 25 retaliation claim is not actionable unless there is an allegation of harm). 26 27 28 9 1 C. Claim III: Deprivation of Nutrition 2 Plaintiff has not properly named a defendant against whom this claim may be asserted. 3 Nonetheless, considering plaintiff’s pro se status, the court will explain certain of the legal 4 standards pertaining to deprivation of nutrition claims. Plaintiff should consider the following 5 standards if he reasserts this claim in an amended complaint with a properly-named defendant. “It is undisputed that the treatment a prisoner receives in prison and the conditions under 6 7 which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v. 8 McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994). 9 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. See 10 Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 11 Cir. 2006). Prison officials must, however, provide prisoners with “food, clothing, shelter, 12 sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th 13 Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); see 14 also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). A claim challenging conditions of confinement under the Eighth Amendment has two 15 16 elements. See Farmer, 511 U.S. at 834. “First, the deprivation must be, objectively, sufficiently 17 serious.”2 Id. (internal quotation marks and citation omitted). Second, “prison officials must 18 have a sufficiently culpable state of mind,” which for conditions of confinement claims, “is one of 19 deliberate indifference.” Id. (internal quotation marks and citation omitted). Prison officials act 20 with deliberate indifference when they know of and disregard an excessive risk to inmate health 21 or safety. Id. at 837. The circumstances, nature, and duration of the deprivations are critical in 22 determining whether the conditions complained of are grave enough to support an Eighth 23 Amendment claim. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence 24 on the part of a prison official cannot establish liability; the official’s conduct must have been 25 26 27 28 Plaintiff’s allegations concerning the deprivation of nutrition, as currently pleaded, do not appear to be sufficiently serious to state a claim. Plaintiff references “documentation of [medical] attention that had arose from the [deprivation of nutrition].” ECF No. 1, at 7. If plaintiff reasserts this claim in an amended complaint, he should consider elaborating on the health problems caused by the alleged deprivation of nutrition. 10 2 1 wanton. See Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 2 IV. 3 CONCLUSION The court has screened plaintiff’s complaint and finds that plaintiff states an excessive 4 force claim against defendant Deputy P. Boles. The court will recommend that plaintiff’s 5 remaining claims be dismissed without prejudice and that plaintiff be granted leave to amend the 6 complaint. Should plaintiff choose to amend the complaint,3 the amended complaint should be brief, 7 8 Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of 9 plaintiff’s constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams, 10 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a 11 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 12 at 570). There is no respondeat superior liability, and each defendant is only liable for his or her 13 own misconduct. See id. at 677. Plaintiff must allege that each defendant personally participated 14 in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). Plaintiff should note 15 that a short, concise statement of the allegations in chronological order will assist the court in 16 identifying his claims. Plaintiff should name each defendant and explain what happened, 17 describing personal acts by the individual defendant that resulted in the violation of plaintiff’s 18 rights. Plaintiff should also describe any harm he suffered from the violation of his rights. 19 Plaintiff should not fundamentally alter his complaint or add unrelated issues. 20 Any amended complaint will supersede the original complaint, Lacey v. Maricopa 21 County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete on its face 22 without reference to the prior, superseded pleading, see E.D. Cal. Local Rule 220. Once an 23 amended complaint is filed, the original complaint no longer serves any function in the case. 24 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 25 of each defendant must be sufficiently alleged. The amended complaint should be titled “First 26 27 28 3 In making this calculation, plaintiff should consider whether his claims are properly brought in the same complaint. If the three claims are unrelated, they might be more properly asserted in three discrete lawsuits. 11 1 Amended Complaint,” refer to the appropriate case number, and be an original signed under 2 penalty of perjury. 3 V. RECOMMENDATIONS 4 Under 28 U.S.C. § 636(c)(1), all parties named in a civil action must consent to a 5 magistrate judge’s jurisdiction before that jurisdiction vests for “dispositive decisions.” Williams 6 v. King, 875 F.3d 500, 504 (9th Cir. 2017). No defendant has appeared or consented to a 7 magistrate judge’s jurisdiction, so any dismissal of a claim requires an order from a district judge. 8 Id. Thus, the undersigned submits the following findings and recommendations to a United 9 States District Judge under 28 U.S.C. § 636(b)(l): 10 1. Plaintiff states an excessive force claim against defendant Deputy P. Boles. 11 2. Plaintiff’s remaining claims should be dismissed without prejudice, and plaintiff 12 should be granted leave to amend the complaint. 13 3. If plaintiff files an amended complaint, defendant Boles should not be required to 14 respond until the court screens the amended complaint. 15 Within fourteen (14) days of service of these findings and recommendations, plaintiff may 16 file written objections with the court. If plaintiff files such objections, he should do so in a 17 document captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 18 Plaintiff is advised that failure to file objections within the specified time may result in the waiver 19 of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 20 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 IT IS SO ORDERED. 23 Dated: 24 October 25, 2018 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 12
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