(PC) Tunstall v. Bick ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT WILLIAM TUNSTALL, JR., No. 2:16-CV-2604-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JOSEPH BICK, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is plaintiff’s fourth amended complaint (ECF No. 19 68). 20 21 I. BACKGROUND 22 Plaintiff filed his original complaint on November 1, 2016. See ECF No. 1. 23 Plaintiff has amended this complaint four times by order of the Court. See ECF No. 26; ECF No. 24 31; ECF No. 571; ECF No. 68. On September 13, 2019, the Court issued an order instructing 25 plaintiff to file a fourth amended complaint due to deficiencies in plaintiff’s third amended 26 complaint. See ECF No. 60. The Court advised plaintiff that his First Amendment access to court 27 1 The docket erroneously marks ECF No. 57 as plaintiff’s second amended 28 complaint. It is plaintiff’s third amended complaint. 1 claim and Fourteenth Amendment due process claim regarding false charges could pass screening 2 if amended. See ECF No. 60, pgs. 10-11. Plaintiff otherwise stated a cognizable Eighth 3 Amendment medical care claim, Fourteenth Amendment due process claim, First Amendment 4 retaliation claim, Eighth Amendment excessive force claim, and Americans with Disabilities Act 5 violation. See ECF No. 60, pgs. 4-11. The Court also advised plaintiff that his Fifth Amendment 6 Miranda rights claim, Fourteenth Amendment prison grievance claim, and Eighth Amendment 7 verbal harassment claim could not pass screening even if plaintiff attempted to amend the 8 complaint. Id. 9 On January 6, 2020, plaintiff filed his fourth amended complaint. See ECF No. 68. 10 However, plaintiff’s fourth amended complaint was far more disorganized than his previous 11 complaint. Plaintiff not only failed to correct the deficiencies of his third amended complaint, but 12 also failed to articulate claims which the Court had previously found adequately pled. Because the 13 Court was unable to refer back to prior pleadings to make plaintiff’s fourth amended complaint 14 complete, see Local Rule 220, the Court issued an order allowing plaintiff to withdraw his fourth 15 amended complaint and proceed on the valid claims of his third amended complaint. See ECF No. 16 71. The Court also stated that, if plaintiff elected not to withdraw his fourth amended complaint, 17 the Court would issue findings and recommendations that the action be dismissed for failure to 18 state a claim upon which relief can be granted. Id. at 3-4. 19 On July 30, 2020, plaintiff submitted a response to the voluntary withdrawal order. 20 See ECF No. 72. Plaintiff did not take the opportunity to withdraw his fourth amended complaint 21 and proceed on the third amended complaint which stated cognizable claims appropriate for 22 service. Instead, plaintiff charges, as to the Defendant and the Court, that: 23 [They] are Law Enforcement and [their] corruption is endless [sic] and Plaintiff is Garbage and as Garbage has nothing coming. The Court can do 24 whatever the Court wants to do because Plaintiff is nothing but Garbage. 25 ECF No. 72, pg. 3. 26 / / / 27 / / / 28 / / / 1 II. DISCUSSION 2 In its July 22, 2020 order, the Court screened plaintiff’s fourth amended complaint 3 and stated that: 4 An amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Because 5 plaintiff amended his third amended complaint, the Court cannot refer to the prior pleading to make plaintiff’s amended complaint complete. See 6 Local Rule 220. An amended complaint must be complete in itself without reference to any prior pleading. See id. 7 Plaintiff’s present fourth amended complaint is far more disorganized and does not rectify the defects in plaintiff’s third amended 8 complaint which were amendable to rectification. Plaintiff’s present complaint does not address plaintiff’s First Amendment access to court 9 claim. Plaintiff’s amended complaint also does not remedy the issues with plaintiff’s previous Fourteenth Amendment false accusation claims 10 because plaintiff only offers one conclusory statement that defendant Rogers made false allegations. See ECF No. 60, pg. 7. 11 In addition, many of plaintiff’s previously cognizable claims are no longer alleged with sufficient detail to pass screening. For 12 example, plaintiff’s third amended complaint states a cognizable Eighth Amendment excessive force claim against “Asian Nurse Doe Defendant” 13 by claiming that “Asian Nurse” dropped her left knee on plaintiff’s hand, shoved her right knee on plaintiff’s abdomen, and threatened to push 14 plaintiff off a gurney. See ECF No. 60, pg. 4. In his present complaint, plaintiff only makes the conclusory assertions that “Asian Nurse” 15 assaulted him and that she is a terrorist. See ECF No. 68, pgs. 7-8. Plaintiff’s fourth amended complaint contains numerous similar instances 16 where plaintiff’s new complaint does not allege sufficient factual information to state a cognizable claim. Very few, if any, of plaintiff’s 17 claims would pass screening in his fourth amended complaint. 18 ECF No. 71, pg. 3. 19 The Court also stated that: 20 If plaintiff elects not to withdraw the fourth amended complaint, the Court will issue findings and recommendations that the 21 action be dismissed for failure to state a claim upon which relief can be granted. 22 Id. at 3-4. 23 24 As discussed above, plaintiff has not elected to withdraw his fourth amended 25 complaint. Therefore, consistent with the Court’s prior analysis set forth above, the Court now 26 finds that plaintiff’s fourth amended complaint fails to state a cognizable claim and should be 27 dismissed without further leave to amend. 28 / / / MAIS 2 AY EM INIT RAINING VUE PO PIO OIE AY IT 1 I. CONCLUSION 2 Because it does not appear that plaintiff is willing to correct the deficiencies 3 | identified herein by amending the complaint, plaintiff should be afforded no further leave to 4 | amend, and the dismissal of the entire action is appropriate. See Lopez v. Smith, 203 F.3d 1122, 5 | 1126, 1131 (9th Cir. 2000) (en banc). 6 Based on the foregoing, the undersigned recommends that plaintiffs action be 7 | dismissed without prejudice. 8 These findings and recommendations are submitted to the United States District 9 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 10 | after being served with these findings and recommendations, any party may file written 11 | objections with the court. Responses to objections shall be filed within 14 days after service of 12 | objections. Failure to file objections within the specified time may waive the right to appeal. See 13 | Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 | Dated: August 5, 2020 Ssvcqo_ 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28