(PC) Witkin v. Blackwell ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON WITKIN, No. 2:17-cv-2692 JAM AC P 12 Plaintiff, 13 v. ORDER 14 D. BLACKWELL, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to this court 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before this court for screening is plaintiff’s first amended complaint. See ECF No. 12. 21 For the reasons stated below, the court will give plaintiff a final opportunity to amend his 22 complaint. 23 I. RELEVANT PROCEDURAL HISTORY 24 On July 8, 2019, plaintiff’s original complaint was screened by this court. See ECF No. 7. 25 The complaint was 150 pages in length including attachments. See generally ECF No. 1. It was 26 not filed on the court’s Civil Rights Complaint By A Prisoner form. Instead, it was filed on plain 27 paper. See generally id. 28 //// 1 One screening, the court found that the complaint: (1) did not present short and plain 2 statements of plaintiff’s claims in violation of Federal Rule of Civil Procedure 8(a)(2); (2) had 3 conflated several different, unrelated events that had not arisen out of the same transaction or 4 occurrence, in violation Federal Rule of Civil Procedure 20; and (3) presented a number of vague 5 and conclusory claims. See generally ECF No. 7. The court also noted that plaintiff had listed a 6 number of John Does as defendants and had failed to tie specific actions and violations of right to 7 specifically named defendants. See id. at 5-6. 8 Because of these deficiencies, plaintiff’s original complaint was dismissed with leave to 9 amend. See ECF No. 7 at 6. At that time, the Clerk of Court was directed to send plaintiff a copy 10 of this court’s civil rights complaint form. See id. at 6. 11 II. PLAINTIFF’S FIRST AMENDED COMPLAINT 12 On September 5, 2019, plaintiff filed the instant first amended complaint. ECF No. 12. 13 The complaint, which is twenty-seven pages in length with no attachments, suffers from the same 14 deficiencies as the original complaint despite its reduced volume. Compare ECF No. 1, with ECF 15 No. 12. Moreover, instead of filling out in its entirety and returning the civil rights complaint 16 form that had been sent to him, plaintiff has simply sandwiched his free-form, meandering and 17 unfocused brief in between the first and last pages of the civil rights form that he should have 18 completed. See generally ECF No. 12. As a result, not only has plaintiff failed to provide the 19 court with information that it needs to be able to assess the viability of his case, he has provided a 20 second pleading that fails to provide “short and plain statement[s]” of his claims showing that he 21 is entitled to relief. See Fed. R. Civ. P. 8(a)(2). 22 III. DISCUSSION 23 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 24 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 25 heightened pleading standard in cases other than those governed by Rule 9(b).”); Fed. R. Civ. P. 26 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 27 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 28 //// 1 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 2 which was adopted to focus litigation on the merits of a claim.”); see also Fed. R. Civ. P. 8(a)(2). 3 With thirteen named defendants, fifteen John Doe defendants, fourteen claims,1 and 4 twenty-three pages of rambling facts, it cannot be said that plaintiff’s first amended complaint 5 consists of “short and plain statement[s]” which demonstrate that he is entitled to relief. See 6 generally Fed. R. Civ. P. 8(a)(2). For this reason, the court will give plaintiff a final opportunity 7 to file an amended complaint. Should he choose to do so, the pleading must be filed on the 8 court’s Civil Rights Complaint By A Prisoner form, and the form must be filled out in its entirety. 9 Filling out the form should enable plaintiff to streamline his claims significantly. 10 When filing the second amended complaint, plaintiff must eliminate all preambles, 11 introductions, argument, speeches, explanations, stories, griping, vouching, evidence, attempts to 12 negate possible defenses, summaries, and the like from his pleading. McHenry v. Renne, 84 F.3d 13 1172, 1180 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for violation of Rule 8 after 14 warning); see Crawford-El v. Britton, 523 U.S. 574, 597 (1998) (reiterating that “firm application 15 of the Federal Rules of Civil Procedure is fully warranted” in prisoner cases). The court (and 16 defendants) should be able to read and understand his pleading within minutes. McHenry, 17 84 F.3d at 1177. A long, rambling pleading, including many defendants with unexplained, 18 tenuous or implausible connection to the alleged constitutional injury or joining a series of 19 unrelated claims against many defendants will likely result in delaying the review required by 28 20 U.S.C. § 1915 or an order dismissing plaintiff’s action pursuant to Fed. R. Civ. P. 41 for violation 21 of these instructions. 22 IV. OPTIONAL LEAVE TO AMEND 23 Plaintiff is being given a final opportunity to amend the complaint. If plaintiff chooses to 24 file a second amended complaint, it will take the place of the original complaint. See Lacey v. 25 //// 26 1 Plaintiff’s claims range from the denial of his access to courts due to a move from one prison to 27 another in October 2016, to deliberate indifference and retaliation when he was denied a lower bunk in September 2012 and November 2016, to the retaliatory loss of his job in November 2016, 28 to various state tort claims. See generally ECF No. 12 at 2-24. 1 Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (amended complaint supersedes original). Any 2 amended complaint should observe the following: 3 An amended complaint must identify as a defendant only persons who personally 4 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson 5 v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 6 constitutional right if he does an act, participates in another's act or omits to perform an act he is 7 legally required to do that causes the alleged deprivation). 8 An amended complaint must also contain a caption including the names of all 9 defendants. Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging 10 new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 11 Any amended complaint must be written or typed so that it is complete in itself without 12 reference to any earlier filed complaint. See L.R. 220 (E.D. Cal. 2009). This is because an 13 amended complaint supersedes any earlier filed complaint, and once an amended complaint is 14 filed, the earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 15 F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being 16 treated thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 17 F.3d 896 (2012). 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Within thirty days of the date of this order, plaintiff may file a Second Amended 20 Complaint that complies with the Federal Rules of Civil Procedure, the Local Rules and the 21 directives within this order. 22 Plaintiff is warned that failure to file an amended complaint within this period and/or 23 failure to file an amended complaint that complies with federal rules and guidelines may result in 24 a recommendation that this action be dismissed for failure to state a claim and/or failure to follow 25 a court order. See 28 U.S.C. § 1915A(b)(1); Fed. R. Civ. P. 41(b); L.R. 110 (E.D. Cal. 2009), 26 and 27 2. The Clerk of Court is directed to send plaintiff a copy of this court’s Civil Rights 28 Complaint By A Prisoner form. 1 Plaintiff is warned that failure to fill out and return all pages of the civil rights complaint 2 || form may result in a recommendation that this action be dismissed for failure to follow a court 3 || order. See Fed. R. Civ. P. 41(b); L.R. 110 (E.D. Cal. 2009). 4 | DATED: January 24, 2020 ~ 5 Hthren— Lhar—e_ ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28