Opinion

(PC) Driver v. Gibson

Court
District Court, E.D. California
Filed
Aug 30, 2021
Cited by
0 cases
Authority
More cited than 17.7%

The opinion

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8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 BILLY DRIVER, JR., No. 2:20-CV-0642-KJM-DMC-P

12 Plaintiff,

13 v. ORDER

14 KEITH GIBSON, et al.,

15 Defendants.

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17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C.

18 § 1983. Before the Court is plaintiff’s first amended complaint. ECF No. 30. The Court grants leave

19 to amend to cure the defects discussed below.

20 I. SCREENING REQUIREMENT

21 The Court must screen complaints from prisoners seeking relief against a

22 governmental entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any

23 cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, fails to

24 state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

25 immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

26 A complaint must contain a short and plain statement of the claim that a plaintiff is

27 entitled to relief. Fed. R. Civ. P. 8(a)(2). The complaint must provide “enough facts to state a claim

28 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause

2 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

3 662, 678 (2009). To survive screening, a plaintiff’s claims must be facially plausible, which

4 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant

5 is liable for the misconduct alleged. Id. at 678–79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

6 (9th Cir. 2009). Plaintiffs must demonstrate that each defendant personally participated in the

7 deprivation of the plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). If the

8 allegations “do not permit the court to infer more than the mere possibility of misconduct,” the

9 complaint does not state a claim. Iqbal, 556 U.S. at 679. The complaint need not identify “a precise

10 legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016).

11 The Court must construe a pro se litigant’s complaint liberally. See Haines v.

12 Kerner, 404 U.S. 519, 520 (1972) (per curiam); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

13 2012). However, “‘a liberal interpretation of a civil rights complaint may not supply essential

14 elements of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d

15 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

16 The Court may dismiss a pro se litigant’s complaint “if it appears beyond doubt that the plaintiff

17 can prove no set of facts in support of his claim which would entitle him to relief.” Hayes v. Idaho

18 Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017).

19 II. PLAINTIFF’S ALLEGATIONS

20 Plaintiff is a state prisoner. See ECF No. 30, pg. 1. He sues four defendants: (1) the

21 Office of Administrative Law (OAL); (2) Keith Gibson, an Administrative Law Judge (ALJ); (3)

22 William Hoover, an ALJ; and (4) C. Hahn, a prison employee at California Medical Facility (CMF).

23 Id. at 1–2, 14, 19. Plaintiff does not specify the specific right that he believes Defendants violated.

24 Id. at 3–5. Yet, he alleges that due process protections were required before he could be forcibly

25 medicated, but not a judicial hearing where judges are “deliberately indifferent.” Id. at 4. Plaintiff

26 brings claims related to forced medication, safety, and failure to provide notice of a hearing. Id.

27 Moreover, Plaintiff cites 28 U.S.C. 1915(g) to indicate that he is in imminent danger. See id.

28 / / /

1 Plaintiff brings his first claim against Judges Gibson and Hoover. Id. at 3. Gibson

2 and Hoover, after administrative hearings, both allegedly issued orders authorizing prison

3 personnel to involuntarily medicate Plaintiff with psychiatric medication. See id. at 3, 14–18.

4 Plaintiff alleges he is in imminent danger of nonconsensual injections. Id. Plaintiff contends that

5 the injections have caused dangerous side effects like gynecomastia (enlargement of breast tissue

6 in men) and weight gain. Id at 3. Plaintiff apparently believes that the hearings at which Gibson

7 and Hoover were themselves improper and based off of false testimony and reports, including

8 reports that he is a danger to others and a report about an incident that never happened. Id.

9 Continuing his discussion of forced medication, Plaintiff discusses Dr. Joshua

10 Elliott, a prison physician who is not a named defendant. Id. at 4. Dr. Elliott allegedly falsified

11 records and requests that Plaintiff be forcibly medicated. Id. Dr. Elliott assertedly perjured himself

12 at the hearing on forced medication. Id. Plaintiff also alleges that he is not psychotic, ill, or a danger

13 to others. Id. Rather, he is forced to take “toxic” medication based on a false report of a rules

14 violation that never occurred. See id. The false reports and medication issues have, in Plaintiff’s

15 view, precipitated his incarceration well past his projected 2010 release date. See id. Plaintiff

16 contends that a correctional office, F. Sevilla, wrote a false rules violation report. Id. That assertion

17 may refer to the alleged false reports that purportedly led to his being forcibly medicated. See id.

18 Lastly, Plaintiff alleges that Defendant C. Hahn, under penalty of perjury, falsely

19 stated that Plaintiff received (and that she herself had served) notice of a forced medication hearing

20 and documents regarding Plaintiff’s newly assigned attorney. See id. at 5. As such, Plaintiff claims

21 he was not adequately represented and that he is still required to take unconsented medication. Id.

22 He labels his claim only as “failure to give notice.” Id.

23 Plaintiff also attaches various records to his complaint. See id. at 9–49. Notably,

24 some of those records indicate that Plaintiff sought treatment for injury related to his forced

25 medication. E.g., id. at 20. Other attachments include, for example, correspondence with various

26 lawyers who declined to represent Plaintiff, medical records, and prisoner classification records.

27 Id. at 9–49. Plaintiff also attaches past declarations discussing an alleged past assault, heart

28 conditions, and his various allegations related to being involuntarily medicated. Id. at 21–26.

1 Plaintiff seeks an order directing discontinuation of involuntary medications, an

2 award of several million dollars in damages, and an award of billions of dollars that he be allowed

3 to donate. See id. at 6–7.

4 III. DISCUSSION

5 The Court previously screened Plaintiff’s original complaint. See ECF No. 28. The

6 Court found that the original complaint was defective for at least two reason. Id. at 2. First, the

7 Court noted that Judge Gibson is absolutely immune from suit. Id. Second, Plaintiff failed to link

8 the other defendants named in the original complaint to any constitutional violation. Id.

9 Here, Plaintiff’s amended complaint largely suffers from the same defects. The OAL

10 is immune, as are Judge Gibson and Judge Hoover. Second, plaintiff has not alleged facts to link

11 the remaining named Defendants to the claimed constitutional violations.

12 A. Section 1983 Standards:

13 Section 1983 provides a remedy for the violation of constitutional and federal

14 statutory rights by a person acting under the authority of state law. 42 U.S.C. § 1983; see, e.g.,

15 Sampson v. County of Los Angeles, 974 F.3d 1012, 1018 (9th Cir. 2020); Hall v. City of Los

16 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Long v. County of Los Angeles, 442 F.3d 1178,

17 1185 (9th Cir. 2006). Section 1983, however, is not itself a source of substantive rights. Albright

18 v. Oliver, 510 U.S. 266, 271 (1994); Sampson, 974 F.3d at 1018; Hall, 697 F.3d at 1068. Rather, §

19 1983 is a vehicle for vindicating rights “elsewhere conferred.” Sampson, 974 F.3d at 1018.

20 To state a claim under § 1983, Plaintiff must allege (1) a deprivation of his

21 constitutional rights or federally protected rights and (2) that the defendant’s actions were taken

22 under color of state law. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th

23 Cir. 2011); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006); see Sampson, 974 F.3d at

24 1018; Hall, 697 F.3d at 1068. Plaintiff, in other words, must plausibly allege that he suffered a

25 violation of a federally protected right and that a person acting under color of state law committed

26 that violation. See, e.g., Sampson, 974 F.3d at 1018; Long, 442 F.3d at 1185.

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1 A person deprives another of a constitutional right within § 1983’s meaning if they

2 take an affirmative action, participates in another person’s affirmative action, or fails to take an

3 action that they are legally required to take and that causes the alleged deprivation. Preschooler II

4 v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007); see Lacey v. Maricopa Cty.,

5 693 F.3d 896, 915 (9th Cir. 2012). Personal participation, however, is only one predicate for

6 liability under § 1983. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); see Lacey, 693 F.3d at

7 915. “The requisite causal connection may [also] be established when an official sets in motion a

8 ‘series of acts by others which the actor knows or reasonably should know would cause others to

9 inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.3d at 743).

10 This standard of causation resembles the typical “foreseeability” formulation of proximate cause.

11 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see Harper v. City of Los

12 Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

13 In sum, there can be no § 1983 liability unless there is an adequate link or connection

14 between a defendant’s actions and the claimed deprivation. See, e.g., Arnold, 637 F.2d at 1355;

15 Johnson, 588 F.2d at 743; see also Harper, 533 F.3d at 1026. A plaintiff must show that a defendant

16 was the actionable cause of a claimed injury. Harper, 533 F.3d at 1026. Vague and conclusory

17 allegations of official participation in a civil rights violation are unsatisfactory. Litmon v. Harris,

18 768 F.3d 1237, 1241 (9th Cir. 2014); Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

19 B. 28 U.S.C. § 1915(g) Does not Provide a Cause of Action:

20 Plaintiff’s repeated citation of 28 U.S.C. 1915(g) does not help him. Section 1915

21 permits the Court to authorize prisoner plaintiffs to proceed in a case without prepayment of fees.

22 28 U.S.C. § 1915(a)(1). Section 1915(g) establishes the Prison Litigation Reform Act’s (PLRA)

23 three-strikes rule. Washington v. Los Angeles Cty. Sheriff's Dep’t, 833 F.3d 1048, 1054 (9th Cir.

24 2016). The PLRA's three-strikes rule bars prisoners from proceeding in forma pauperis if they have

25 “three strikes.” Washington, 833 F.3d at 1054. Specifically, if on three or more previous occasions

26 a prisoner brought a case that was dismissed on the basis that it was frivolous, malicious, or failed

27 to state a claim on which relief could be granted, the prisoner cannot proceed in forma pauperis.

28 Id.; see 28 U.S.C. § 1915(g).

1 The statute contains an express exception for prisoners “under imminent danger of

2 serious physical injury.” 28 U.C.C. § 1915(g). Plaintiff’s citations to § 1915(g) are obviously meant

3 to convey that he believes he is in imminent danger, but because a three-strikes issue is not before

4 the Court, the statute is irrelevant for this screening order.

5 C. Sovereign Immunity Shields the Office of Administrative Law:

6 Plaintiff names the Office of Administrative Law as a defendant but does not

7 otherwise discuss it in his complaint. Even if he did, the OAL is immune from suit.

8 The Eleventh Amendment provides that the “[j]udicial power of the United States

9 shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one

10 of the United States by Citizens of another State.” U.S. Const. amend. XI. Generally, the Eleventh

11 Amendment precludes federal courts from exercising jurisdiction over suits by individuals against

12 a State and its instrumentalities. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97–100

13 (1984); Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018); see Allen v.

14 Cooper, 140 S. Ct. 994, 1000 (2020); Maldonado v. Johnson, No. CV 19-5312-JVS (SP), 2021 WL

15 1152889, at *2 (C.D. Cal. Feb. 12, 2021).

16 There are a few exceptions to that rule. See, e.g., Atascadero State Hosp. v. Scanlon,

17 473 U.S. 234, 238 (1985); Holley v. Cal. Dep’t Corrs., 599 F.3d 1108, 1111 (9th Cir. 2010);

18 Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 817–18 (9th Cir. 2001). States can consent to

19 suit and waive immunity. Sossamon v. Texas, 563 U.S. 277, 283–85 (2011); Pennhurst, 465 U.S.

20 at 99; Holley, 599 F.3d at 1111; Maldonado, 2021 WL 1152889, at *2. Congress may abrogate

21 States’ immunity. See Coleman v. Court of Appeals of Md., 566 U.S. 30, 35 (2012); Seminole

22 Tribe of Fla. v. Florida, 517 U.S. 44, 55–56 (1996); Pennhurst, 465 U.S. at 99; Holley, 599 F.3d at

23 1111; Maldonado, 2021 WL 1152889, at *2. And parties may sue state officials for prospective

24 injunctive relief. See Seminole Tribe, 517 U.S. at 73; Doe, 891 F.3d at 1153; Krainski v. Nevada

25 ex rel. Bd. of Regents, 616 F.3d 963, 967–68 (9th Cir. 2010); Douglas, 271 F.3d at 817–18.

26 Section 1983 does not override States’ sovereign immunity. E.g., Will v. Mich.

27 Dep’t of State Police, 491 U.S. 58, 67, 71 (1989) (“We cannot conclude that § 1983 was intended

28 to disregard the well-established immunity of a State from being sued without its consent.”). Too,

1 immunity extends to arms of the State, like state agencies. Crowe v. Oregon State Bar, 989 F.3d

2 714, 730 (9th Cir. 2021); Brown v. Cal. Dep’t Corr., 554 F.3d 747, 752 (9th Cir. 2009); Durning v.

3 Citibank, N.A., 950 F.2d 1419, 1422–23 (9th Cir. 1991); see Pennhurst, 465 U.S. at 100.

4 California has consented to some suit in its own courts, such as under the California

5 Torts Claims Act. See, e.g., Maldonado, 2021 WL 1152889, at *2. But California has not waived

6 its immunity in federal court. E.g., Brown, 554 F.3d at 752; Dittman v. California, 191 F.3d 1020,

7 1025–26 (9th Cir. 1999); see also Atascadero, 473 U.S. at 241. Arms of the State of California thus

8 share in California’s immunity absent waiver. See, e.g., Crowe, 989 F.3d at 730; Durning, 950 F.2d

9 at 1422–23; Frisby v. California, No. 1:20-cv-00228-DAD-GSA-PC, 2021 WL 2983144, at *3

10 (E.D. Cal. July 15, 2021); see also Brown, 554 F.3d at 752.

11 Expressly organized as part of California’s state government under the Government

12 Operations Agency (GOA), the OAL is presumably a state agency for the purposes of sovereign

13 immunity. See Cal. Govt. Code § 11340.2(a); see also Crowe, 989 F.3d at 730–31 (stating that the

14 Eleventh Amendment bars suits against state agencies and identifying factors used to determine

15 whether an agency is an “instrumentality” of the state); Glenn v. CalSTRS, No. 16-cv-05512-SK,

16 2017 WL 5973513, at *4–6 (N.D. Cal. Feb. 21, 2017) (finding that a California state agency

17 organized under the GOA and that administered benefits for public school teachers was an

18 instrumentality of the state entitled to sovereign immunity). California’s Legislature established the

19 OAL because, at the time, no central office in state government had the power to review

20 administrative regulations, and because it felt that the proliferation of regulations required the

21 involvement of the Executive Branch. Cal. Govt. Code. §11340(e)–(f).

22 Having considered the relevant factors (e.g., whether an entity performs central

23 government functions), the Court concludes that the OAL is an instrumentality of the State of

24 California and shielded under sovereign immunity. See Crowe, 989 F.3d at 730–31; Glenn, 2017

25 WL 5973513, at *4–6. To the extent that Plaintiff includes OAL as a defendant, sovereign immunity

26 bars those claims. See Pennhurst, 465 U.S. at 100; Crowe, 989 F.3d at 730–31; Durning, 950 F.2d

27 at 1422–23; Frisby, 2021 WL 2983144, at *3.

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1 D. Gibson and Hoover are Shielded by Judicial Immunity:

2 Judges are absolutely immune from liability for judicial acts taken within their

3 official capacity—for their judicial acts. See Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008);

4 Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988); Ashelman v. Pope, 793 F.2d 1072,

5 1075 (9th Cir. 1986) Judges retain absolute immunity even when accused of acting corruptly,

6 maliciously, or in error. See Stump v. Sparkman, 435 U.S. 349, 355–57 (1978); Ashelman, 793

7 F.2d at 1075. The absolute immunity afforded to judges disappears only when a judge acts in the

8 clear absence of all jurisdiction or takes an action that is not judicial in nature. Stump, 435 U.S.

9 356–57; Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2008); Meek v. County of Riverside,

10 183 F.3d 962, 965–66 (9th Cir. 1999); Schucker, 846 F.2d at 1204.

11 The Court, of course, recognizes that Judges Gibson and Hoover are administrative

12 law judges, rather than officers of the judicial branch itself. But judges receive immunity not

13 because of their position within the government but the substance of their responsibilities. Butz v.

14 Economou, 438 U.S. 478, 511–12 (1978). Administrative law judges’ duties are functionally

15 comparable to those of judges as traditionally understood. Id. at 511–13. They thus receive

16 immunity for actions taken in their judicial role. See id.; Hirsh v. Justices of Supreme Court of Cal.,

17 67 F.3d 708, 715 (9th Cir. 1995); Powell v. Cmm’r of Soc. Sec. Admin., No. CV-21-00054-PHX-

18 SMB, 2021 WL 410870, at *2 (D. Ariz. Feb. 8. 2021); Ungureanu v. A. Teichert & Son, No. CIV

19 S–11–0316 LKK GGH PS, 2011 WL 4862425, at *11 (E.D. Cal. Oct. 13, 2011).

20 Plaintiff sues Judge Hoover and Judge Gibson over their orders permitting him to

21 be forcibly medicated. Issuance of orders is clearly a judicial function. Judge Hoover and Judge

22 Gibson are thus immune and Plaintiff’s claims for damages against them are barred. Plaintiff does

23 not allege any extra-judicial conduct on the Judges’ part.

24 E. Plaintiff Other Claims Fail to Satisfy Rule 8 and Establish Causal Links:

25 Plaintiff does not sufficiently plead a violation of his constitutional or federal

26 statutory rights in any of his other claims. Nor do Plaintiff’s other allegations satisfy Rule 8.

27 Notwithstanding the inferentially-recognizable due process claims against Judge

28 Gibson and Judge Hoover, Plaintiff’s other claims are vague and conclusory at best. Although

1 Plaintiff broadly labels his claims with “failure to protect” or “failure to give notice,” he never

2 indicates what right he believes has been violated. See ECF No. 30 at 4–5. Nor does he adequately

3 indicate what he is challenging. For example, Plaintiff is plainly unhappy with being involuntarily

4 medicated. But while he takes issue with Dr. Elliott’s writing of a false report supporting the forced

5 treatment, Plaintiff does not name Dr. Elliott as a defendant. Id. at 4. Neither does Plaintiff clearly

6 identify whether he discretely asserts Dr. Elliott’s liability for writing the report or only challenges

7 the involuntary medication (and the hearing) insofar as it premised upon a false report. See id. The

8 same is true of the assertion that F. Sevilla wrote a fraudulent rules violation report. See id.

9 It is true, of course, that the Court must liberally construe pro se prisoner complaints.

10 E.g., Litmon, 768 F.3d at 1241. But the liberality with which the Court must construe Plaintiff’s

11 complaint is not an invitation to disregard the rules that bind each litigant who brings a controversy

12 before the federal judiciary. See Cafasso, 637 F.3d at 1058–59; McHenry, 84 F.3d at 1178–80.

13 Plaintiff is not exempted from the requirement that his complaint contain a short and plain

14 statement of his entitlement to relief. Fed. R. Civ. P. 8(a). Vague and conclusory allegations do not

15 establish Dr. Elliott as a defendant. Indeed, because it is unclear what precisely Plaintiff takes issue

16 with—the writing of the report or the premise of the involuntary medication order—Plaintiff does

17 not establish an adequate causal connection between Dr. Elliott and any constitutional harm.

18 Plaintiff must plausibly allege that he suffered a violation of federally safeguarded rights at the

19 hands of a defendant acting under color of state law. Florer, 639 F.3d at 921; Sampson, 974 F.3d at

20 1018. But Plaintiff does not establish that Dr. Elliott is the actionable cause behind a (clearly pled)

21 constitutional injury. The Court will not supply the essential elements of Plaintiff’s claims.

22 Similarly, Plaintiff labels his claim against Hahn only as “failure to give notice.”

23 ECF No. 30 at 5. Though possibly implicating the Due Process Clause of the Fourteenth

24 Amendment, Plaintiff again fails to provide enough information or clarity for the Court to make

25 that leap. See id. Plaintiff contends that Hahn failed to deliver notice of Plaintiff’s new attorney,

26 and that she perjured herself when she said that she had delivered it. Id. Plaintiff then states that he

27 went to his forced medication hearing without an attorney, which was why he must still take

28 medication. Id. Though Plaintiff names Hahn as a defendant, he still does not allege what precise

1 right he believes has been violated. See id. The premise of liability is also again unclear. Plaintiff

2 is vague about whether he directly challenges Hahn’s alleged failure to deliver notice or, more

3 broadly, that he was not represented at his hearing. Id. Plaintiff has not sufficiently linked Hahn to

4 an alleged deprivation. That indefiniteness satisfies neither Rule 8 nor § 1983’s pleading threshold.

5 Plaintiff must clearly and plausibly allege that he suffered a deprivation of some right and that Hahn

6 is responsible for that deprivation. See, e.g., Sampson, 974 F.3d at 1018; Long, 442 F.3d at 1185.

7 IV. CONCLUSION

8 Because it is possible that some of the deficiencies identified in this order may be

9 cured by amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the

10 entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

11 informed that, as a general rule, an amended complaint supersedes the original complaint. See

12 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

13 amend, all claims alleged in the original complaint which are not alleged in the amended complaint

14 are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if Plaintiff amends

15 the complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's amended

16 complaint complete. See Local Rule 220. An amended complaint must be complete in itself without

17 reference to any prior pleading. See id.

18 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the

19 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis

20 v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each

21 named defendant is involved and must set forth some affirmative link or connection between each

22 defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

23 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

24 Because some of the defects identified in this order cannot be cured by amendment,

25 Plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now has the

26 following choices: (1) Plaintiff may file an amended complaint which does not allege the claims

27 identified herein as incurable, in which case such claims will be deemed abandoned and the Court

28 will address the remaining claims; or (2) Plaintiff may file an amended complaint which continues

1 | to allege claims identified as incurable, in which case the Court will issue findings and

2 || recommendations that such claims be dismissed from this action, as well as such other orders and/or

3 | findings and recommendations as may be necessary to address the remaining claims.

4 Finally, Plaintiff is warned that failure to file an amended complaint within the time

5 || provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 1260-

6 | 61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply with

7 | Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). See

8 | Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

9 Accordingly, IT IS HEREBY ORDERED that:

10 1. Plaintiffs first amended complaint (ECF No. 30) is dismissed with leave to

11 | amend.

12 2. Plaintiff shall file a second amended complaint within 30 days of the date of

13 || service of this order.

14

15 | Dated: August 30, 2021 Ssvcqo_

16 DENNIS M. COTA

17 UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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