(PC) Hernandez v. Potts ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY CESAR HERNANDEZ, No. 2:20-cv-1912 WBS CKD P 12 Plaintiff, 13 v. ORDER 14 T. POTTS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. On December 16, 2020, the court recommended that plaintiff’s amended 19 complaint be dismissed and this case be closed. Plaintiff objects to the court’s recommendation. 20 In part, he seeks leave to file a second amended complaint. Good cause appearing, the court will 21 vacate the December 16, 2020 findings and recommendations. Plaintiff’s amended complaint 22 will be dismissed, but plaintiff will be granted leave to file a second amended complaint. 23 In drafting his second amended complaint, plaintiff should refer to the court’s October 13, 24 2020 order and the December 16, 2020 findings and recommendations. In addition, plaintiff is 25 informed as follows: 26 1. Prison officials generally cannot retaliate against inmates for exercising First 27 Amendment rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Because a prisoner’s 28 First Amendment rights are necessarily curtailed, however, a successful retaliation claim requires 1 a finding that “the prison authorities’ retaliatory action did not advance legitimate goals of the 2 correctional institution or was not tailored narrowly enough to achieve such goals.” Id. at 532. 3 The plaintiff bears the burden of pleading and proving the absence of legitimate correctional 4 goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 5 Also, in order to state a claim for retaliation, plaintiff must point to facts indicating a 6 causal connection between the adverse action and the protected conduct. Watison v. Carter, 668 7 F.3d 1108, 1114 (9th Cir. 2012). 8 2. In order to state a cognizable claim for violation of due process plaintiff must allege 9 facts which suggest that he was deprived of a protected liberty interest. With respect to 10 conditions of confinement, such liberty interests are “generally limited to freedom from restraint 11 which, while not exceeding the sentence in such an unexpected manner as to give rise to 12 protection by the Due Process Clause of its own force, [citations omitted], nonetheless impose[] 13 atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 14 Sandin v. Connor, 515 U.S. 472, 484 (1995). 15 3. To adequately plead an equal protection violation, plaintiff must allege he has been 16 treated differently from others with whom he is similarly situated and that the unequal treatment 17 was the result of intentional or purposeful discrimination. Freeman v. Arpaio, 125 F.3d 732, 737 18 (9th Cir. 1997). 19 As plaintiff has been informed before, the court cannot refer to a prior pleading in order to 20 make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 21 complaint be complete in itself without reference to any prior pleading. This is because, as a 22 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 23 F.2d 55, 57 (9th Cir. 1967). 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The court’s December 16, 2020 findings and recommendations are vacated; 26 2. Plaintiff’s amended complaint is dismissed; and 27 3. Plaintiff is granted thirty days from the date of service of this order to file a second 28 amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 1 | of Civil Procedure, and the Local Rules of Practice. The second amended complaint must bear 2 | the docket number assigned this case and must be labeled “Second Amended Complaint.” Failure 3 | to file a second amended complaint in accordance with this order will result in a recommendation 4 | that this action be dismissed. 5 | Dated: January 13, 2021 fof i, / CAN fu fl. ay 6 CAROLYN K. DELANEY 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 | 1 hern1912.lta 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28