Ocampo v. Fresno Police Department

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 ESTEBAN OCAMPO, No. 1:23-cv-01653-NODJ-EPG

12 Plaintiff, SCREENING ORDER

13 v. ORDER FOR PLAINTIFF TO:

14 FRESNO POLICE DEPARTMENT, et al., (1) FILE AN AMENDED COMPLAINT; OR

15 Defendants. (2) NOTIFY THE COURT THAT HE WANTS

TO STAND ON HIS COMPLAINT

16

(ECF No. 1)

17

THIRTY (30) DAY DEADLINE

18

19

20

Plaintiff Esteban Ocampo proceeds pro se and in forma pauperis in this civil rights action

21

filed pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 3). Plaintiff’s complaint alleges that Defendants

22

used excessive force against him and harassed him in connection with a traffic stop.

23 Upon review, the Court concludes that Plaintiff fails to state any cognizable claims.

24 Plaintiff now has two options on how to proceed: (1) Plaintiff may file an amended complaint, if

25 he believes that additional facts would state cognizable claims, which amended complaint the

26 Court will screen in due course; or (2) he may file a notice stating that he wants to stand on his

27 current complaint and have it reviewed by a district judge, in which case the Court will issue

28 findings and recommendations to the assigned district judge consistent with this order.

1 I. SCREENING REQUIREMENT

2 Because Plaintiff is proceeding in forma pauperis (ECF No. 3), the Court screens the

3 complaint under 28 U.S.C. § 1915(e)(2)(B)(i-iii), which directs the Court to dismiss a case at any

4 time if the Court determines that it is frivolous or malicious, fails to state a claim, or seeks relief

against an immune defendant.

5

A complaint is required to contain “a short and plain statement of the claim showing that

6

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

7

required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

8

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

9

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

10

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

11

Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this

12

plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not

13

required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681

14

(9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal

15

conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

16 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal

17 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that

18 pro se complaints should continue to be liberally construed after Iqbal).

19 II. ALLEGATIONS IN THE COMPLAINT

20 Plaintiff sues five defendants: (1) Fresno Police Department; (2) Paco Balderama, the

21 Fresno Police Department’s Chief of Police; (3) Police Officer Jose Sanchez; (4) Sergeant Ramon

22 Ruiz; and (5) Police Officer Davis.1 Plaintiff alleges that, on August 9, 2023, he was pulled over

23 for having no front plates by Defendants Davis (the driver of the police vehicle) and Sanchez (the

passenger in the police vehicle). Sanchez came out with a gun drawn. Soon after Davis saw some

24

type of paperwork,2 he let Plaintiff go. After parking for a period of time, Sanchez returned and

25

threated to take Plaintiff’s car, which Plaintiff had recently purchased. An unknown police offer

26

27 1 Minor alterations, such as correctly misspellings and altering capitalization, have been made to some of

Plaintiff’s quotations without indicating each change.

28 2 The complaint appears to reference “911 paperwork.” (ECF No. 1, p. 7).

1 passed by in a Durango.

2 Plaintiff asked for a supervisor, but Sanchez stated, “I don’t know why you want me to

3 call my Sergeant, if he is going to do the same.” Defendant Ruiz, whom Plaintiff believes was

4 driving the Durango that had passed earlier, showed up and removed Plaintiff from the vehicle

and searched him. And Sanchez searched Plaintiff’s vehicle. An unknown motorcycle officer

5

showed up and stated that the officer makes all of the officer’s “subjects sign the ticket.” Ruiz

6

made a fool out of Plaintiff and was “hyping people up to get [him] to sign a document.” Sanchez

7

handcuffed Plaintiff “very tightly that [his] wrist gets cut.” Ruiz told Sanchez to add

8

“obstruction,” in what appears to be a reference to a criminal charge that Plaintiff received.

9

Ruiz huddled all the officers and then returned, doubling down on influencing people to

10

get Plaintiff to sign a document. Sanchez handed Plaintiff “to the patrol.” Ruiz continued to

11

antagonize Plaintiff and then left. Ruiz returned and yelled at Plaintiff like he was a “kid,” stating,

12

“Why don’t you want to sign the paper!” Defendant Balderama and his police continue to violate

13

Plaintiff’s rights, causing intentional emotional distress.

14

While in jail, Sanchez kept harassing Plaintiff. He yelled something in front of his

15

coworkers that caused countless inmates to turn and look at Plaintiff, which extended his

16 emotional distress. Plaintiff fears the police and is being terrorized by them.

17 Plaintiff’s complaint describes his purported troubles after the incident in the complaint,

18 including having to quit school, mental health problems, and not seeing his grandmother before

19 she died. Plaintiff seeks approximately $2 million in damages for relief.

20 On the attached civil cover sheet, Plaintiff states that this case arises under 42 U.S.C.

21 § 1983. Elsewhere in the complaint, Plaintiff states that the following Federal provisions are at

22 issue: 18 U.S.C. §§ 241, 242, 245, which are criminal statutes; the Eighth Amendment; the

23 Fourteenth Amendment; and the Fifth Amendment.

III. ANALYSIS OF PLAINTIFF’S COMPLAINT

24

A. Section 1983

25

The Civil Rights Act under which this action was filed provides as follows:

26

Every person who, under color of any statute, ordinance, regulation, custom, or

27 usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

28 jurisdiction thereof to the deprivation of any rights, privileges, or immunities

1 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 . . . .

2

42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

3

provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

4

U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also

5 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles,

6 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir.

7 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

8 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under

9 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or

10 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh

11 v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state

12 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he

does an affirmative act, participates in another’s affirmative act, or omits to perform an act which

13

he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler

14

II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v.

15

Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established

16

when an official sets in motion a ‘series of acts by others which the actor knows or reasonably

17

should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at

18

1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the

19

standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637

20

F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026

21

(9th Cir. 2008).

22

A plaintiff must demonstrate that each named defendant personally participated in the

23

deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual

24 connection or link between the actions of the defendants and the deprivation alleged to have been

25 suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 695

26 (1978).

27 Supervisory personnel are not liable under § 1983 for the actions of their employees under

28 a theory of respondeat superior and, therefore, when a named defendant holds a supervisory

1 position, the causal link between the supervisory defendant and the claimed constitutional

2 violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 858,

3 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for

4 relief under § 1983 based on a theory of supervisory liability, a plaintiff must allege some facts

that would support a claim that the supervisory defendants either: were personally involved in the

5

alleged deprivation of constitutional rights, Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989);

6

“knew of the violations and failed to act to prevent them,” Taylor v. List, 880 F.2d 1040, 1045

7

(9th Cir. 1989); or promulgated or “implement[ed] a policy so deficient that the policy itself is a

8

repudiation of constitutional rights and is the moving force of the constitutional

9

violation,” Hansen, 885 F.2d at 646 (citations and internal quotation marks omitted).

10

For instance, a supervisor may be liable for his or her “own culpable action or inaction in

11

the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence in the

12

constitutional deprivations of which the complaint is made,” or “conduct that showed a reckless

13

or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646

14

(9th Cir. 1991) (citations, internal quotation marks, and brackets omitted).

15

B. Criminal Provisions

16 As an initial matter, Plaintiff’s claims based on alleged violations of criminal statutes

17 cannot proceed because such violations can only be prosecuted by the government. There is no

18 private claim available based on an officer allegedly violating criminal codes.

19 Specifically, Plaintiff’s complaint alleges claims based on the following criminal statutes:

20 18 U.S.C. § 241, which concerns conspiracies against a person’s Federal rights; 18 U.S.C. § 242,

21 which concerns deprivations of a person’s Federal rights under color of law; and 18 U.S.C. § 245,

22 which generally prohibits interference with certain individual activities, including voting,

23 applying for employment, and serving as a juror. But “[t]hese criminal provisions . . . provide no

basis for civil liability.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (addressing

24

§§ 241, 242); see Bey v. City of Oakland, No. 14-CV-01626-JSC, 2014 WL 4220319, at *3 (N.D.

25

Cal. Aug. 25, 2014) (finding no basis for civil liability under §§ 241, 242, and 245). Rather,

26

“unless a specific statute provides for a private right of action, courts have found that violations of

27

Title 18 are properly brought by the United States government through criminal proceedings and

28

1 not by individuals in a civil action.” Banuelos v. Gabler, No. 1:18-CV-00675-LJO-SAB, 2018

2 WL 2328221, at *3 (E.D. Cal. May 22, 2018).

3 Accordingly, Plaintiff cannot state any cognizable claim under the criminal provisions

4 cited in his complaint.

C. Fresno Police Department not a Proper Defendant

5

Additionally, Fresno Police Department is not a proper party to this § 1983 action. As one

6

court has observed:

7

The Fresno Police Department is not a party that is amenable to suit under section

8 1983. Although municipalities, such as cities and counties, are amenable to suit

under Monell, sub-departments or bureaus of municipalities—like the Fresno

9

Police Department—are not generally considered “persons” within the meaning of

10 section 1983.

Pellum v. Fresno Police Dep’t, No. 1:10-CV-01258-OWW-SKO, 2010 WL 3516346, at *2 (E.D.

11

Cal. Sept. 2, 2010); see Sanders v. Aranas, No. 1:06-CV-1574-AWI-SMS, 2008 WL 268972, at

12

*2 (E.D. Cal. Jan. 29, 2008) (collecting cases noting that municipal police departments are not

13

considered “persons” under § 1983).

14

Thus, Plaintiff’s claims against the Fresno Police Department are subject to dismissal.

15

D. Supervisory Claims against Police Chief

16

Moreover, Plaintiff’s allegations against Defendant Balderama, the Police Chief of the

17

Fresno Police Department, are insufficient to establish liability for any of Plaintiff’s claims. As

18

noted above, supervisory personnel are not liable for the actions of their employees under a

19

theory of respondeat superior; thus, when a defendant holds a supervisory position, the causal link

20

between the supervisory defendant and the claimed constitutional violation must be specifically

21 alleged. Iqbal, 556 U.S. at 676-77. The only allegation against Balderama is that this Defendant

22 has an unidentified “policy” in place to violate Plaintiff’s rights. However, beyond this

23 conclusory assertion, Plaintiff fails to identify any policy at issue, describe how it was

24 implemented by Balderama, or explain how it was the moving force behind any constitutional

25 violation. Accordingly, Plaintiff cannot state any claim against Balderama.

26 E. Excessive Force

27 Plaintiff also appears to allege that the officer Defendants used excessive force against

28 him during the traffic stop and arrest.

1 Based on Plaintiff allegations that indicate that he was neither a convicted prisoner nor a

2 federal pretrial detainee at the time of the incidents, the Court concludes that neither the Fifth nor

3 Eighth Amendments are implicated here. See Williams v. U.S. Marshal Doe #1, No. 22-CV-0139-

4 BAS-BLM, 2022 WL 17330851, at *2 n.3 (S.D. Cal. Nov. 29, 2022) (“The Eighth Amendment

applies to convicted prisoners, while the Fifth Amendment applies to excessive force claims

5

raised by federal pretrial detainees.”); Hernandez v. Metro. Det. Ctr., No. 2:20-CV-03869-DSF-

6

JC, 2022 WL 16888509, at *3 n.4 (C.D. Cal. Sept. 28, 2022) (“Because plaintiff sues federal

7

officers, the Fifth Amendment, rather than the Fourteenth Amendment, is the proper basis for any

8

equal protection or due process claim.”). Accordingly, Plaintiff cannot state any cognizable claim

9

under these Amendments.

10

Because the circumstances of the complaint indicate that Plaintiff was ultimately arrested

11

in connection with a traffic stop, the Fourth Amendment3 provides the relevant standard for his

12

excessive-force claim. Graham v. Connor, 490 U.S. 386, 394 (1989) (“Where, as here, the

13

excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is

14

most properly characterized as one invoking the protections of the Fourth Amendment, which

15

guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’

16 of the person.”); see also Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1042 (9th Cir.

17 1996) (noting that “the Fourth Amendment continues to protect an arrestee during the second

18 custodial stage, post-arrest but pre-arraignment”). Such excessive-force claims are “properly

19 analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham, 490 U.S.

20 at 388. “Determining whether the force used to effect a particular seizure is ‘reasonable’ under

21 the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on

22 the individual’s Fourth Amendment interests against the countervailing governmental interests at

23 stake.” Id. at 396 (internal quotation marks and internal citations omitted). The Supreme Court

has cautioned that this reasonableness inquiry should not be approached mechanically but “its

24

proper application requires careful attention to the facts and circumstances of each particular case,

25

including the severity of the crime at issue, whether the suspect poses an immediate threat to the

26

27

3 The protections of the Fourth Amendment have been “incorporated in the Fourteenth Amendment.”

28 Miranda v. City of Cornelius, 429 F.3d 858, 861 (9th Cir. 2005).

1 safety of the officers or others, and whether he is actively resisting arrest or attempting to evade

2 arrest by flight.” Id. As for the objective component of the inquiry, “the question is whether the

3 officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting

4 them, without regard to their underlying intent or motivation.” Id. at 397.

In his complaint, Plaintiff states that Sanchez came out with “guns drawn.” The Ninth

5

Circuit has concluded that, in certain circumstances, pointing a gun at a suspect can constitute

6

excessive force. Robinson v. Solano Cnty., 278 F.3d 1007, 1014 (9th Cir. 2002). However, the

7

Ninth Circuit, citing Graham, emphasized that the particular facts of each case were important to

8

determining whether the use of a drawn gun constituted excessive force. Id. at 1013-14.

9

Here, Plaintiff fails to allege facts that, if true, would indicate that approaching Plaintiff

10

with a gun drawn at this traffic stop was excessive and unconstitutional. While Plaintiff indicates

11

that he was pulled over for having no front plates and that Sanchez “came out guns drawn,” he

12

does not provide any further facts regarding the stop such as what he or Sanchez said during the

13

stop; whether Sanchez pointed the gun at him; what Plaintiff did during the stop; whether Plaintiff

14

had any weapon; or whether he was compliant with the instructions of officers. Accordingly, the

15

Court cannot conclude that, even if the facts in Plaintiff’s complaint are true, the Defendants used

16 excessive force in violation of the Constitution.

17 Plaintiff also alleges that Sanchez handcuffed him “very tightly [so] that [his] wrist gets

18 cut.” “The mere application of handcuffs during the course of an arrest does not, in and of itself,

19 give rise to a section 1983 claim for excessive force. The right to make an arrest carries with it the

20 right to use ‘some degree of physical coercion.”’ Dillman v. Tuolumne Cnty., No. 1:13-CV-00404

21 LJO, 2013 WL 1907379, at *7 (E.D. Cal. May 7, 2013) (quoting Graham, 490 U.S. at 396). “The

22 Ninth Circuit has held that excessively tight handcuffing can constitute a Fourth Amendment

23 violation, but only where a plaintiff claims to have been demonstrably injured by the handcuffs or

where complaints about the handcuffs being too tight were ignored.” Id. at *8 (citations omitted).

24

However, not any injury will suffice, rather the injury must be unreasonable:

25

The Court finds the reasoning in Ha v. City of Liberty Lake instructive on this

26 issue. 2010 WL 4065491 (E.D. Wa. Oct. 15, 2010). Ha analyzed the Ninth

Circuit’s rulings on overly-tight handcuffing claims and explained that

27

“unreasonable injury to a person’s wrists using handcuffs constitutes excessive

28 force,” but “handcuffing is not excessively forceful unless supported by factual

1 allegations detailing specific actions that caused specific injuries in the application

of the handcuffs.” Id. at *6 (emphasis in original). Here, Rocky’s only evidence to

2

support his excessive force claim is his testimony that the handcuffs were too tight

and caused him a slight abrasion.

3

Luong v. City & Cnty. of San Francisco, No. C11-5661 MEJ, 2012 WL 5869561, at *5 (N.D. Cal.

4

Nov. 19, 2012).

5

Plaintiff fails to provide any of the surrounding circumstances of the handcuffing that led

6

to his injuries; moreover, he fails to describe his injury beyond calling it a “cut.” Accordingly,

7

even construing all facts alleged in the complaint as true, the Court cannot conclude that

8

excessive force was used.

9

F. Harassment

10

Plaintiff’s complaint alleges harassment by Defendants. His allegations mostly center on

11

Ruiz trying to get him to sign a document. He states that Ruiz made a fool out of him and was

12

“hyping people up to get [him] to sign a document.” Additionally, Ruiz huddled up with officers

13

and then doubled down on influencing people to get him to sign a document. Ruiz continued to

14

“antagonize” him and yelled at him like he was a “kid,” stating, “Why don’t you want to sign the

15

paper!”

16

While the Ninth Circuit has indicated that “unusually gross” comments may implicate a

17

constitutional claim, Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), opinion amended on

18

denial of reh’g, 135 F.3d 1318 (9th Cir. 1998), “mere verbal harassment does not give rise to a

19

constitutional violation under section 1983.” Shong-Ching Tong v. City of Pomona, 97 F.3d 1461

20

(9th Cir. 1996). Here, Plaintiff has failed to allege any “unusually gross” comments by Ruiz.

21

Rather, his allegations about Ruiz “hyping people up,” trying to influence him to sign a

22

document, and talking to him like a “kid” are at most instances of mere verbal harassment that are

23

insufficient to state a § 1983 claim for violating Plaintiff’s constitutional rights.

24

Plaintiff additionally alleges that Sanchez “kept harassing” him while he was in jail,

25

stating that “he yelled something that cause[d] countless . . . inmates to turn and look at [him].”

26

However, Plaintiff does not identify what Sanchez said, let alone identify unusually gross

27

comments so as to state a potentially actionable claim.

28

1 The Court notes that the Ninth Circuit has held that certain comments made in front of

2 other inmates that could subject a plaintiff to harm, such as labeling an inmate a snitch, can state a

3 § 1983 claim. See Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (upholding a

4 failure to protect claim where Plaintiff “alleged that because he had petitioned prison and

5 government officials for redress of his grievances, [Defendants] had conspired to label him a

6 ‘snitch’ and thereby subject him to retaliation by inmates”). However, beyond stating that

7 Sanchez’s comment caused other inmates to look at him, he does not allege that he was put in

8 danger by Sanchez’s comment. Additionally, Plaintiff does not allege that any inmate harmed him

9 or threatened to harm him because of Sanchez’s comment.

10 Accordingly, the Court concludes that Plaintiff has failed to state any claim for

11 harassment under the above standards.

12 E. Potential Heck Bar

13 Without deciding the issue, the Court notes a possible bar to this lawsuit. In Heck v.

Humphrey, 512 U.S. 477, 486–87 (1994), the United States Supreme Court held that to recover

14

damages for “harm caused by actions whose unlawfulness would render a conviction or sentence

15

invalid,” a § 1983 plaintiff must prove that the conviction or sentence was reversed, expunged, or

16

otherwise invalidated. The favorable termination rule laid out in Heck preserves the rule that

17

claims which, if successful, would necessarily imply the invalidity of a conviction or sentence,

18

must be brought by way of a petition for writ of habeas corpus. Muhammad v. Close, 540 U.S.

19

750-51 (2004).

20

Here, it is possible that Plaintiff is involved in criminal proceedings related to the arrest

21

discussed in the complaint. If success on Plaintiff’s claims would necessarily imply the invalidity

22

of a conviction or sentence, then: (1) the claim must be brought by way of a petition for writ of

23

habeas corpus; and (2) would be subject to the favorable termination rule, which requires the

24 conviction or sentence to have been reversed, expunged, or otherwise invalidated, before Plaintiff

25 could recover damages. Also, if a plaintiff files any “claim related to rulings that will likely be

26 made in a pending or anticipated criminal trial[,] it is within the power of the district court, and in

27 accord with common practice, to stay the civil action until the criminal case or the likelihood of a

28 criminal case is ended.” Wallace v. Kato, 549 U.S. 384, 393-94 (2007).

1 IV. CONCLUSION AND ORDER

2 The Court has screened Plaintiff’s complaint and concludes that he fails to state any

3 cognizable claims.

4 Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely give

leave [to amend] when justice so requires.” Thus, the Court will provide Plaintiff with thirty days

5

to file an amended complaint curing the deficiencies identified above. Lopez v. Smith, 203 F.3d

6

1122, 1126-30 (9th Cir. 2000). If Plaintiff chooses to file an amended complaint, the amended

7

complaint must allege violations under the law with the required specificity described above.

8

Plaintiff should note that, although he has been given the opportunity to amend, it is not for the

9

purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 507 F.3d

10

605, 607 (7th Cir. 2007) (no “buckshot” complaints).

11

Additionally, Plaintiff is advised that an amended complaint supersedes the original

12

complaint, Lacey v. Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and must

13

be complete in itself without reference to the prior or superseded pleading, Local Rule 220.

14

Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

15

of each Defendant must be sufficiently alleged. The amended complaint should be clearly and

16 boldly titled “First Amended Complaint,” refer to the appropriate case number, and be an original

17 signed under penalty of perjury.

18 Alternatively, Plaintiff may choose to stand on this complaint, in which case the Court

19 will issue findings and recommendations to a district judge consistent with this order.

20 For the above reasons, IT IS ORDERED that:

21 1. The Clerk of Court is directed to send Plaintiff a § 1983 civil rights complaint

22 form;

23 2. Within thirty (30) days from the date of service of this order, Plaintiff shall either:

a. File a First Amended Complaint; or

24

b. File a notice stating that he wants to stand on his first amended complaint.

25

3. Should Plaintiff choose to amend his complaint, Plaintiff shall caption the

26

amended complaint “First Amended Complaint” and refer to the case number

27

1:23-cv-01653-NODJ-EPG; and

28

1 4. Failure to comply with this order may result in the dismissal of this action.

2

3 IT IS SO ORDERED.

4] Dated: _ January 24, 2024 [Je hey —

5 UNITED STATES MAGISTRATE JUDGE

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28