# (PC) Leslie v. Claborn

> District Court, E.D. California · October 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10030767

## Case

- **Court:** District Court, E.D. California
- **Decided:** October 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- discussing “under color of 2 state law”

## Opinion text

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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DESHAWN DESHAY LESLIE, 1:19-cv-00366-NONE-GSA-PC
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Plaintiff, ORDER DISMISSING SECOND AMENDED
13 COMPLAINT FOR FAILURE TO STATE A
v. CLAIM, WITH LEAVE TO AMEND
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JEREMY CLABORNE, et al., (ECF NO. 29.)
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Defendants. THIRTY-DAY DEADLINE TO FILE THIRD
16 AMENDED COMPLAINT

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I. BACKGROUND
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Deshawn Deshay Leslie (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On March 19, 2019, Plaintiff
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filed the Complaint commencing this action. (ECF No. 1.) On May 1, 2019, Plaintiff filed the
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First Amended Complaint as a matter course. (ECF No. 10.) The court screened the First
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Amended Complaint and issued an order on July 28, 2020, dismissing it for violation of Rules
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18 and 20, with leave to amend. (ECF No. 17.) On July 9, 2021, Plaintiff filed the Second
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1 Amended Complaint which is now before the court for screening. (ECF No. 29.) 28 U.S.C.
2 1915.
3 II. SCREENING REQUIREMENT
4 The court is required to screen complaints brought by prisoners seeking relief against a
5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
9 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
10 dismiss the case at any time if the court determines that the action or appeal fails to state a claim
11 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
12 A complaint is required to contain “a short and plain statement of the claim showing that
13 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
14 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken
17 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,
18 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state
19 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim
20 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,
21 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal
22 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this
23 plausibility standard. Id.
24 III. PLAINTIFF’S SECOND AMENDED COMPLAINT
25 Plaintiff is a state prisoner presently incarcerated at the California Substance Abuse
26 Treatment Facility in Corcoran, California. The events at issue in the Second Amended
27 Complaint allegedly occurred at California Correctional Institution in Tehachapi, California,
28 when Plaintiff was incarcerated there in the custody of the California Department of Corrections
1 and Rehabilitation (CDCR). Plaintiff names as defendants Correctional Officer (C/O) Jeremy
2 Claborn, C/O Ismael Cavazos, Sergeant B. Anderson, Lieutenant Luis Machado, C/O Lisa
3 Olivares, C/O Michael Rodriguez, B. Sutton (Teacher), Captain Terri Gonzales, Leanna Lundy
4 (Associate Warden), and John Does #1-3 (collectively, “Defendants”).
5 Claim #1
6 On or about January 11, 2019, at 1315 hours, defendant C/O Jeremy Claborn called
7 Plaintiff over by the Unit Office and told him that if he didn’t stop running to the Captain and
8 telling her about what happened on January 5, 2019, he would kick Plaintiff’s ass. The January
9 5, 2019 incident was when defendant John Doe #1 tried to solicit three inmates to try and assault
10 Plaintiff, calling him a snitch due to one of Plaintiff’s lawsuits and Plaintiff being a MAC Rep.
11 Defendant J. Claborn was the IAC Chairman. Defendant Claborn told Plaintiff that if he said
12 anything about what he told Plaintiff he and defendant C/O Cavazos would fuck Plaintiff up.
13 On January 14, 2019, at 1130 hours, Plaintiff talked with defendant Captain T. Gonzales
14 and told her what had happened, but she failed to act or open an inquiry into all of the claims
15 made in this Complaint.
16 On February 14, 2019, at 1430 hours, defendants Claborn and Cavazos told Plaintiff if he
17 didn’t stop trying to file his complaint, they would send some inmates to fuck Plaintiff up. On
18 February 17, 2019, at 1115 hours, Plaintiff was stopped by defendant Sergeant Anderson who
19 told Plaintiff to stop filing staff complaints against his officers. Defendant Anderson also told
20 Plaintiff that all of his complaints against defendant Claborn would never be filed.
21 Claim #2
22 On or about January 11, 2019, January 14, 2019, and February 12, 2019, Plaintiff was
23 stopped by all of the named Defendants in Claim #1 who threatened him and retaliated against
24 him. On February 12, 2019, defendant Sergeant Anderson intimidated Plaintiff and threatened
25 his safety to try and stop Plaintiff from filing grievances. On February 14, 2019, defendant
26 Claborn told Plaintiff to stop trying to file and tell on him in a staff complaint appeal. Defendants
27 Anderson, Claborn, and Cavazos told Plaintiff they would see to it that Plaintiff gets an ass
28 kicking he will never forget.
1 Claim #3
2 On January 11, 2019 and sometime in March 2019, defendants Claborn and Does #1-#3
3 all conspired to interfere with Plaintiff’s civil rights to redress his complaints in appeals for all
4 of the claims made in this action. All of the named defendants have conspired to threaten Plaintiff
5 and hinder Plaintiff’s rights to file appeals and grievances and seek relief. Then all of the named
6 Defendants conspired to try and solicit three inmates to try and assault Plaintiff calling him a
7 snitch due to Plaintiff’s other lawsuit and Plaintiff being a MAC Rep.
8 Request for Relief
9 Plaintiff seeks declaratory relief, monetary damages and punitive damages, costs of suit,
10 attorney’s fees when applicable, and an evidentiary hearing.
11 IV. PLAINTIFF’S CLAIMS
12 The Civil Rights Act under which this action was filed provides:

13 Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
14 be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
15 secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
16

17 42 U.S.C. § 1983.
18 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a
19 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,
20 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v.
21 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d
22 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v.
23 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law
24 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the
25 federal Constitution, Section 1983 offers no redress.” Id.
26 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under
27 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution
28 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also
1 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of
2 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983,
3 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act
4 which he is legally required to do that causes the deprivation of which complaint is made.’”
5 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting
6 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be
7 established when an official sets in motion a ‘series of acts by others which the actor knows or
8 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479
9 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles
10 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp.,
11 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010,
12 1026 (9th Cir. 2008).
13 A. No Personal Participation – defendants Machado, Olivares, Rodriguez,
14 Sutton, and Lundy
15 Under section 1983, Plaintiff must demonstrate that each defendant personally
16 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)
17 (emphasis added). Plaintiff must demonstrate that each defendant, through his or her own
18 individual actions, violated Plaintiff’s constitutional rights. Iqbal, 556 U.S. at 676. Liability may
19 not be imposed under a theory of respondeat superior, and there must exist some causal
20 connection between the conduct of each named defendant and the violation at issue. Id. at 676-
21 77; Lemire v. California Dept. of Corrections and Rehabilitation, 726 F.3d 1062, 1074-75; Lacey
22 v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); Starr v. Baca, 652 F.3d
23 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
24 In the Second Amended Complaint, Plaintiff did not allege any facts concerning personal
25 acts by defendants Machado, Olivares, Rodriguez, Sutton, or Lundy. Plaintiff did not make any
26 allegations against any of these five defendants. Therefore, Plaintiff fails to state any claims
27 against defendants Machado, Olivares, Rodriguez, Sutton, or Lundy.
28 ///
1 B. Retaliation
2 “Prisoners have a First Amendment right to file grievances against prison officials and to
3 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)
4 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A retaliation claim has five
5 elements. Id.
6 First, the plaintiff must allege that the retaliated-against conduct is protected. The filing
7 of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir.
8 2005). A prisoner’s formal and informal grievances, whether in writing or verbal, are protected
9 conduct under First Amendment. Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017)
10 Second, the plaintiff must claim the defendant took adverse action against the plaintiff.
11 Rhodes, 408 F.3d at 567. The adverse action need not be an independent constitutional violation.
12 Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere threat of harm can be an adverse
13 action....” Brodheim, 584 F.3d at 1270.
14 Third, the plaintiff must allege a causal connection between the adverse action and the
15 protected conduct. Because direct evidence of retaliatory intent rarely can be pleaded in a
16 complaint, allegations of a chronology of events from which retaliation can be inferred is
17 sufficient to survive dismissal. See Pratt, 65 F.3d at 808 (“timing can properly be considered as
18 circumstantial evidence of retaliatory intent”); Murphy v. Lane, 833 F.2d 106, 108–09 (7th Cir.
19 1987).
20 Fourth, the plaintiff must allege that the “official’s acts would chill or silence a person of
21 ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 (internal
22 quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect may
23 still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is
24 “more than minimal,” Robinson, 408 F.3d at 568 n.11. That the retaliatory conduct did not chill
25 the plaintiff from suing the alleged retaliator does not defeat the retaliation claim at the motion
26 to dismiss stage. Id. at 569.
27 Fifth, the plaintiff must allege “that the prison authorities’ retaliatory action did not
28 advance legitimate goals of the correctional institution....” Rizzo v. Dawson, 778 F.2d 527, 532
1 (9th Cir.1985). A plaintiff successfully pleads this element by alleging, in addition to a retaliatory
2 motive, that the defendant’s actions were arbitrary and capricious, id., or that they were
3 “unnecessary to the maintenance of order in the institution,” Franklin v. Murphy, 745 F.2d 1221,
4 1230 (9th Cir.1984).
5 Plaintiff alleges that defendants Claborn, Cavazos, Anderson, and John Does #1-#3 all
6 retaliated against him, either for filing prison grievances/appeals or for reporting to defendant
7 Captain T. Gonzales that defendant John Doe #1 tried to solicit three inmates to try and assault
8 Plaintiff.
9 Plaintiff’s participation in the prison appeals process and his reporting to Captain
10 Gonzales about defendant John Doe #1 trying to solicit inmates to assault Plaintiff are all
11 protected conduct under the First Amendment. Entler, 872 F.3d at 1031 (state prisoner’s formal
12 and informal grievances, whether in writing or verbal, were protected conduct under First
13 Amendment); Uribe v. McKesson, No. 08–cv–1285 SMS, 2011 WL 9640 at *12 (E.D.Cal. Jan.3,
14 2011) (prisoner’s attempt to report a prison official’s misconduct, either “verbally or in writing,
15 constitutes speech or conduct entitled to First Amendment protection.”)
16 As for adverse actions against Plaintiff by Defendants, Plaintiff alleges that defendant
17 Claborn threatened to “kick Plaintiff’s ass” and “fuck Plaintiff up;” that defendants Claborn and
18 Cavazos threatened to “send some inmates to fuck Plaintiff up;” and that defendants Anderson,
19 Claborn, and Cavazos told Plaintiff they would see to it that Plaintiff “gets an ass kicking” he
20 will never forget. These threats to Plaintiff’s safety and well-being are threats that would chill
21 or silence a person of ordinary firmness from future First Amendment activities and therefore are
22 adverse actions against Plaintiff.
23 Plaintiff also alleges that defendant Anderson intimidated him, threatened his safety, and
24 told Plaintiff his complaints against defendant Claborn would never be filed. However, these
25 allegations of intimidation and threat to safety are vague and conclusory. Without more facts
26 describing what Anderson did or said to intimidate Plaintiff and threaten Plaintiff’s safety, the
27 court cannot find that these acts would chill or silence the activities of a person of ordinary
28 firmness. Plaintiff must explain more about Anderson’s threats that Plaintiff’s complaints would
1 never be filed. Plaintiff should clarify the circumstances of this threat and whether defendant
2 Anderson had the authority or opportunity to stop Plaintiff’s complaints from being filed.
3 Plaintiff should also clarify whether Anderson was referring to prison grievances or court
4 lawsuits as complaints that would never be filed.
5 Plaintiff must also allege more facts to show a nexus or connection between his
6 grievances or complaints and the adverse actions taken against him. Plaintiff should provide
7 more information about when he filed each of the grievances or complaints, who each complaint
8 was filed against, how Defendants would have known about these filings, and how the actions
9 against Plaintiff are connected to each filing, showing retaliatory intent. Ideally, Plaintiff’s
10 allegations should state the dates when events happened, in chronological order. Plaintiff must
11 not combine dates together or describe what multiple Defendants did together. Instead, Plaintiff
12 must name an individual Defendant and allege how that individual Defendant personally acted
13 against him, causing Plaintiff’s constitutional rights to be violated. With respect to the Doe
14 Defendants, Plaintiff must give more identifying information, if he can, as to each of them and
15 allege how each of them personally acted against him and what, if anything, each one said to
16 him. For example, are the Doe defendants inmates, correctional officers, or others. Likewise,
17 Plaintiff cannot state a claim by making allegations against the Doe Defendants as a group.
18 Plaintiff is advised that Doe defendants must be named or otherwise identified as actual
19 individuals before service can go forward. For service to be successful, the Marshal must be able
20 to identify and locate defendants.
21 Plaintiff must also allege that the prison authorities’ retaliatory actions did not advance
22 legitimate goals of the correctional institution.
23 Plaintiff shall be granted leave to amend his retaliation claim to address the deficiencies
24 identified by the court.
25 C. Failure to Protect – Eighth Amendment Claim
26 The Eighth Amendment protects prisoners from inhumane methods of punishment and
27 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
28 2006). Although prison conditions may be restrictive and harsh, prison officials must provide
1 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v.
2 Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison
3 officials have a duty to take reasonable steps to protect inmates from physical abuse. Farmer,
4 511 U.S. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison
5 officials to protect inmates from attacks by other inmates may rise to the level of an Eighth
6 Amendment violation where prison officials know of and disregard a substantial risk of serious
7 harm to the plaintiff. E.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040.
8 To establish a violation of this duty, the prisoner must establish that prison officials were
9 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The
10 question under the Eighth Amendment is whether prison officials, acting with deliberate
11 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future
12 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has
13 explained that “deliberate indifference entails something more than mere negligence . . . [but]
14 something less than acts or omissions for the very purpose of causing harm or with the knowledge
15 that harm will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference”
16 standard as equal to “recklessness,” in which “a person disregards a risk of harm of which he is
17 aware.” Id. at 836-37.
18 The deliberate indifference standard involves both an objective and a subjective prong.
19 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834.
20 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate
21 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).
22 To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in
23 fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S.
24 at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).
25 Plaintiff alleges that after defendants Claborn and Cavazos told him that if he said
26 anything about the 1/5/19 incident they would F…him up, he went to defendant Captain T.
27 Gonzales and told her what had happened, but she failed to act or open an inquiry into all of the
28 claims made in this Complaint. These allegations are not sufficient to state a failure-to-protect
1 claim against defendant Gonzales. Plaintiff has not shown that defendant T. Gonzales was made
2 aware and believed that Plaintiff was at a substantial risk of serious harm by the Defendants.
3 Plaintiff has not shown that defendant Gonzales knew about the risk and yet ignored the risk or
4 otherwise acted unreasonably to the known risk.
5 To show that Defendant Gonzales, or any other named defendant, failed to protect him
6 from being assaulted, Plaintiff must allege facts against each individual Defendant explaining
7 what each of them did or said that showed they knew about a substantial risk of serious injury to
8 Plaintiff and ignored the known risk.
9 Therefore, Plaintiff fails to state a claim against any of the Defendants for failure to
10 protect him in violation of the Eighth Amendment.
11 D. Conspiracy
12 Conspiracy under § 1983 requires proof of “an agreement or meeting of the minds to
13 violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal
14 quotation marks omitted) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d
15 1539, 1540-41 (9th Cir. 1989)), and that an “‘actual deprivation of his constitutional rights
16 resulted from the alleged conspiracy,’” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006)
17 (quoting Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) ). “‘To be liable,
18 each participant in the conspiracy need not know the exact details of the plan, but each participant
19 must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting
20 United Steelworkers, 865 F.2d at 1541). A plaintiff must allege facts with sufficient particularity
21 to show an agreement or a meeting of the minds to violate the plaintiff’s constitutional rights.
22 Miller v. Cal. Dep’t of Soc. Servs., 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum,
23 866 F.2d at 1126). The mere statement that defendants “conspired” or acted “in retaliation” is
24 not sufficient to state a claim. “Threadbare recitals of the elements of a cause of action, supported
25 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
26 U.S. at 555).
27 The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state
28 specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of
1 Med., 363 F.3d 916, 929 (9th Cir. 2004) (citation and internal quotation marks omitted)
2 (discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th
3 Cir. 1989) (“To state a claim for conspiracy to violate one’s constitutional rights under section
4 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.”
5 (citation omitted)).
6 At this point much of Plaintiff’s allegations of a conspiracy under § 1983 fail because
7 his allegations are conclusory and merely speculative. For instance, Plaintiff claims that Claborn
8 and DOES 1-3 conspired to interfere with Plaintiff’s civil rights. However, it is not enough to
9 simply allege that Defendants conspired against him. Plaintiff must provide more specific
10 information/facts about the conspiracy and how each individual defendant is part of that
11 conspiracy. Plaintiff should provide details about what was said by each defendant, who was
12 present when conspiratorial statements were made, and what the purpose of the conspiracy was
13 about. Therefore, Plaintiff fails to state a claim for conspiracy.
14 V. CONCLUSION AND ORDER
15 For the reasons set forth above, the court finds that Plaintiff’s Second Amended
16 Complaint fails to state any cognizable claims upon which relief may be granted against any of
17 the defendants. Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should
18 freely give leave to amend when justice so requires.” Therefore, Plaintiff shall be granted leave
19 to amend the complaint. The court will provide Plaintiff with thirty days to file a Third Amended
20 Complaint curing the deficiencies identified above. Noll v. Carlson, 809 F.2d 1446, 1448-49
21 (9th Cir. 1987).
22 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each
23 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.
24 Iqbal, 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must set forth “sufficient factual matter
25 . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 (quoting Twombly, 550 U.S. at
26 555).
27 Plaintiff must demonstrate in his amended complaint how the conditions complained of
28 have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th
1 Cir. 1980). The amended complaint must allege in specific terms how each named defendant is
2 involved.
3 Plaintiff may not change the nature of this suit by adding unrelated claims in his amended
4 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
5 ///
6 Also, Plaintiff is not granted leave to add allegations to the amended complaint of events
7 that occurred after March 19, 2019, the date the original Complaint was filed.
8 As a general rule, an amended complaint supersedes the original complaint. See Loux v.
9 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original
10 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in
11 an original complaint, each claim and the involvement of each defendant must be sufficiently
12 alleged.
13 The Third Amended Complaint should be clearly and boldly titled “Third Amended
14 Complaint,” refer to the appropriate case number, and be an original signed under penalty of
15 perjury.
16 Accordingly, IT IS HEREBY ORDERED that:
17 1. Plaintiff’s Second Amended Complaint, filed on July 9, 2021, is dismissed for
18 failure to state a claim upon which relief may be granted against any of the
19 Defendants, with leave to amend;
20 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form;
21 3. Within thirty days from the date of service of this order, Plaintiff shall file a Third
22 Amended Complaint curing the deficiencies in the Second Amended Complaint
23 identified by the court;
24 4. Plaintiff shall caption the amended complaint “Third Amended Complaint” and
25 refer to the case number 1:19-cv-00366-NONE-GSA-PC; and
26 5. Plaintiff’s failure to comply with this order shall result in a recommendation that
27 this action be dismissed.
28
IT IS SO ORDERED.
1

2 Dated: October 1, 2021 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10030767. Public record. Not legal advice.