(PC) Jones v. Placer County Sheriff's Office

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 LLOYD DYLAN JONES, No. 2:19-cv-0342-MCE-EFB P

12 Plaintiff,

13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 PLACER COUNTY SHERIFF’S OFFICE,

et al.,

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Defendants.

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18 Plaintiff, a state prisoner proceeding pro se in an action pursuant to 42 U.S.C. § 1983, has

19 filed an application for leave to proceed in forma pauperis. ECF No. 2. He has also submitted an

20 “amended complaint” (ECF No. 7), a motion for injunctive relief (ECF No. 6), a request for an

21 order to “preserve evidence” (ECF No. 8), and a motion for the appointment of counsel (ECF No.

22 11).

23 Application to Proceed In Forma Pauperis

24 Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C.

25 § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody

26 of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth

27 in 28 U.S.C. § 1915(b)(1) and (2).

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1 Screening

2 The court is required to screen complaints brought by prisoners seeking relief against a

3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

7 Here, plaintiff has filed an original complaint (ECF No. 1) and what he has labelled a

8 “First Amended Complaint” (ECF No. 7). In the First Amended Complaint, plaintiff purports to

9 “add” causes of action to his original complaint. ECF No. 7 at 6, 7. Amending or adding to the

10 original complaint in a piecemeal fashion through separate filings, however, is not the proper

11 procedure for amending a complaint. If plaintiff wishes to add, omit, or correct information in the

12 operative complaint, he must file an amended complaint that is complete within itself. This is

13 because an amended complaint supersedes any earlier filed complaint, and once an amended

14 complaint is filed, the earlier filed complaint no longer serves any function in the case. See

15 Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes

16 the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d

17 55, 57 (9th Cir. 1967)). Plaintiff’s complaints are therefore dismissed with leave to amend in

18 accordance with the requirements set forth in this order.1

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1 Plaintiff should take note that his intended claims for relief are completely unrelated and

21 cannot be pursued together in a single action. See ECF Nos. 1 & 7 (asserting medical claims

along with unrelated illegal search and seizure claims). It is well settled that a claimant may not

22 proceed with various unrelated claims against separate defendants:

23 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party

asserting a claim to relief as an original claim, counterclaim, cross-

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claim, or third-party claim, may join, either as independent or as

25 alternate claims, as many claims, legal, equitable, or maritime, as the

party has against an opposing party.’ Thus multiple claims against a

26 single party are fine, but Claim A against Defendant 1 should not be

joined with unrelated Claim B against Defendant 2.”

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28 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

1 Leave to Amend

2 Plaintiff is cautioned that any amended complaint must identify as a defendant only

3 persons who personally participated in a substantial way in depriving him of his constitutional

4 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the

5 deprivation of a constitutional right if he does an act, participates in another’s act or omits to

6 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also

7 include any allegations based on state law that are so closely related to his federal allegations that

8 “they form the same case or controversy.” See 28 U.S.C. § 1367(a).

9 The amended complaint must also contain a caption including the names of all defendants.

10 Fed. R. Civ. P. 10(a).

11 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See

12 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against

13 multiple defendants. Id.

14 Any amended complaint must be written or typed so that it so that it is complete in itself

15 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

16 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

17 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

18 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

19 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

20 1967)).

21 Any amended complaint should be as concise as possible in fulfilling the above

22 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual

23 background which has no bearing on his legal claims. He should also take pains to ensure that his

24 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing

25 and organization. Plaintiff should carefully consider whether each of the defendants he names

26 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in

27 which plaintiff names dozens of defendants will not be looked upon favorably by the court.

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1 Motion for Injunctive Relief

2 Plaintiff’s motion for injunctive relief and request for assistance in preserving evidence

3 must be denied. To satisfy the standard for a preliminary injunction,2 plaintiff must, at a

4 minimum, demonstrate that there is at least a fair chance of success on the merits. Johnson v.

5 California State Board of Accountancy, 72 F.3d 1427, 1430, 1433 (9th Cir. 1995); Sports Form,

6 Inc. v. United Press International, 686 F.2d 750, 753 (9th Cir. 1982). As discussed above, his

7 complaints must be dismissed and at present he has shown no likelihood of success on the merits

8 of any claim. Accordingly, plaintiff’s motions must be denied.

9 Motion for Counsel

10 Plaintiff also requests the appointment of counsel. District courts may authorize the

11 appointment of counsel to represent an indigent civil litigant in certain exceptional circumstances.

12 See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991); Wood v.

13 Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); Richards v. Harper, 864 F.2d 85, 87 (9th

14 Cir. 1988). In considering whether exceptional circumstances exist, the court must evaluate (1)

15 the plaintiff’s likelihood of success on the merits; and (2) the ability of the plaintiff to articulate

16 his claims pro se in light of the complexity of the legal issues involved. Terrell, 935 F.2d at

17 1017. The court cannot conclude that plaintiff’s likelihood of success, the complexity of the

18 issues, or the degree of plaintiff’s ability to articulate his claims amount to exceptional

19 circumstances justifying the appointment of counsel at this time.

20 Conclusion

21 Accordingly, it is ORDERED that:

22 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED.

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2 A preliminary injunction represents the exercise of a far reaching power not to be

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indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141,

26 143 (9th Cir.1964). The moving party must prove that he is likely to succeed on the merits, “that

he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

27 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v.

28 Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)).

1 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

2 || in accordance with the notice to the California Department of Corrections and Rehabilitation filed

3 || concurrently herewith.

4 3. Plaintiff’ s complaints (ECF Nos. 1 & 7) are dismissed with leave to amend within

5 || 30 days of service of this order. Failure to file an amended complaint that complies with this

6 || order may result in the dismissal of this action for the reasons stated herein.

7 4. Plaintiffs motion for the appointment of counsel (ECF No. 11) is denied without

8 || prejudice.

9 Further, IT IS RECOMMENDED that plaintiff’s motion for injunctive relief (ECF No. 6)

10 | and request for assistance in preserving evidence (ECF No. 8) be denied.

11 These findings and recommendations are submitted to the United States District Judge

12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days

13 | after being served with these findings and recommendations, any party may file written

14 | objections with the court and serve a copy on all parties. Such a document should be captioned

15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

16 || within the specified time may waive the right to appeal the District Court’s order. Turner v.

17 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

18 || Dated: October 8, 2019.

20 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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