(PC) Thomas v. Ali ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON LATRELL THOMAS, No. 2:20-cv-0864-EFB P 12 Plaintiff, 13 v. ORDER 14 M. ALI, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. The court previously screened plaintiff’s original complaint and found that it 19 stated viable claims against defendants Moreno, Yang, Gonzalez, Saeturn, Saechao, Ali, Metcalf, 20 Cruz, and McCullough.1 ECF No. 6. The court dismissed all other claims with leave to amend. 21 Id. On June 17, 2020, plaintiff notified the court that he intended to proceed with the viable 22 claims and that he would not be amending his complaint. ECF No. 9. Curiously, however, 23 plaintiff filed an amended complaint on the same day. ECF No. 10. Because an amended 24 complaint supersedes a prior complaint, the court must now screen the amended complaint. 25 1 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 27 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 28 relief.” Id. § 1915A(b). 1 Screening of Amended Complaint 2 The amended complaint (ECF No. 10) is almost identical to the original complaint (ECF 3 No. 1). It is different only to the extent that it (a) drops defendants Ajah, Green, Munoz, 4 Gaughan, Eldridge, and Cruz, see ECF No. 9 at 2-3; and (2) adds claims of “wrongful punitive 5 isolation” and “conspiracy,” id. at 12-13. 6 The claims previously identified by the court as cognizable (see ECF No. 6 at 3-4) are re- 7 alleged in the amended complaint. Thus, the amended complaint again states the following viable 8 claims: 9 a. Eighth Amendment excessive force claims against defendants Moreno, Yang, 10 Gonzalez, Saeturn, Saechao, Ali, and Metcalf, based on an incident that allegedly 11 occurred on November 4, 2019; 12 b. Eighth Amendment excessive force claims against defendants Saechao and 13 McCullough based on an incident that allegedly occurred on December 13, 2019; 14 c. A First Amendment retaliation claim against defendant Saechao, based upon the same 15 December 13, 2019 incident; and 16 d. A First Amendment retaliation claim against defendants Saechao and Saeturn based 17 upon an incident that allegedly occurred in January 2020. 18 Plaintiff’s additional claims for relief – “wrongful punitive isolation” and “conspiracy” – 19 are not cognizable. For the wrongful punitive isolation claim, plaintiff alleges that he was 20 confined to administrative segregation for 35 days. ECF No. 10 at 9, 12. The U.S. Court of 21 Appeals for the Ninth Circuit has held, however, that assignment of a prisoner to administrative 22 segregation, even for an indeterminate term, without more, does not constitute cruel and unusual 23 punishment. See Toussaint v. Yockey, 722 F.2d 1490, 1494 n. 6 (9th Cir. 1984). For the 24 conspiracy claim, plaintiff alleges that defendants “conspired together to infringe[] upon his 25 right[s].” ECF No. 10 at 13. This claim cannot survive screening because it is devoid of any 26 specific allegations. See Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999); 27 Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (to state claim for conspiracy under § 1983, 28 plaintiff must allege facts showing an agreement among the alleged conspirators to deprive him 1 of his rights); Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (to state claim for 2 conspiracy under § 1983, plaintiff must allege at least facts from which such an agreement to 3 deprive him of rights may be inferred); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 4 1989) (per curiam) (conclusory allegations of conspiracy insufficient to state a valid § 1983 5 claim). 6 Plaintiff may either proceed only with the First and Eighth Amendment claims identified 7 herein, or he may further amend his complaint. If he chooses to proceed only with the First and 8 Eighth Amendment claims he is not required to amend his complaint. But if plaintiff chooses to 9 amend to attempt to cure the nonviable claims, he may not change the nature of this suit by 10 alleging new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 11 Leave to Amend 12 Any amended complaint must identify as a defendant only persons who personally 13 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 14 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 15 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 16 legally required to do that causes the alleged deprivation). Plaintiff is not obligated to file an 17 amended complaint. 18 Any amended complaint must be written or typed so that it so that it is complete in itself 19 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 20 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 21 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 22 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 23 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 24 1967)). 25 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 26 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 27 See E.D. Cal. L.R. 110. 28 ///// wOAOe 2 CUVEE RAT MMUETIOTIL Boe POO LOPE PY TV 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiff’s amended complaint alleges, for screening purposes, the following viable 4 claims: 5 a. Eighth Amendment excessive force claims against defendants Moreno, Yang, 6 Gonzalez, Saeturn, Saechao, Ali, and Metcalf based on the November 4, 2019 7 incident; 8 b. An Eighth Amendment excessive force claims against defendants Saechao and 9 McCullough based on the December 13, 2019 incident; 10 c. A First Amendment retaliation claim against defendant Saechao based on the 11 December 13, 2019 incident; and 12 d. A First Amendment retaliation claim against defendants Saechao and Saeturn 13 based on the January 2020 incident. 14 2. All other claims are dismissed with leave to amend within 30 days from the date of 15 service of this order. Plaintiff is not obligated to amend his complaint. 16 3. Within thirty days plaintiff shall return the notice below advising the court whether he 17 elects to proceed with the cognizable claims against defendants Moreno, Yang, 18 Gonzalez, Saeturn, Saechao, Ali, Metcalf, and McCullough or file a second amended 19 complaint. If the former option is selected and returned, the court will enter an order 20 directing service at that time. 21 4. Failure to comply with any part of this this order may result in dismissal of this action 22 for the reasons stated herein. 23 | DATED: September 18, 2020. 24 tid, PDEA 25 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 26 27 28 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 JASON LATRELL THOMAS, No. 2:20-cv-0864-EFB P 9 Plaintiff, 10 v. NOTICE OF ELECTION 11 M. ALI, et al., 12 Defendants. 13 14 In accordance with the court’s Screening Order, plaintiff hereby elects to: 15 16 (1) ______ proceed only with the (a) Eighth Amendment excessive force claims 17 against defendants Moreno, Yang, Gonzalez, Saeturn, Saechao, Ali, and Metcalf based on the November 4, 2019 incident; (b) Eighth Amendment excessive force claims against defendants 18 Saechao and McCullough based on the December 13, 2019 incident; (c) First Amendment retaliation claim against defendant Saechao based on the December 13, 2019 incident; and (d) 19 First Amendment retaliation claim against defendants Saechao and Saeturn based on the January 2020 incident. 20 OR 21 22 (2) ______ delay serving any defendant and files a second amended complaint. 23 24 _________________________________ 25 Plaintiff 26 Dated: 27 28