(PC) Fairchild-Littlefield v. Attinello ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GIGI FAIRCHILD-LITTLEFIELD, 1:19-cv-01579-NONE-GSA-PC 12 Plaintiff, ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE 13 vs. A CLAIM, WITH LEAVE TO AMEND (ECF No. 13.) 14 ATINELLO, et al., THIRTY-DAY DEADLINE TO FILE 15 Defendants. SECOND AMENDED COMPLAINT 16 17 I. BACKGROUND 18 Gigi Fairchild-Littlefield (“Plaintiff”) is a state prisoner proceeding pro se with this civil 19 rights action under 42 U.S.C. § 1983. On November 5, 2019, Plaintiff filed the Complaint 20 commencing this action. (ECF No. 1.) On January 2, 2020, Plaintiff filed the First Amended 21 Complaint as a matter of course, which is now before the court for screening. 28 U.S.C. § 1915. 22 (ECF No. 13.) 23 II. SCREENING REQUIREMENT 24 The court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 28 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 1 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 2 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 3 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 4 III. SUMMARY OF FIRST AMENDED COMPLAINT 5 Plaintiff is presently incarcerated at Central California Women’s Facility (CCWF) in 6 Chowchilla, California, in the custody of the California Department of Corrections and 7 Rehabilitation (CDCR), where the events at issue in the First Amended Complaint allegedly 8 occurred. Plaintiff names as defendants Valerie Attinello (Nurse Practitioner), Radiology Report 9 Writer (name unknown), Sergeant Alamo, Correctional Officer (C/O) N. Snider, CCWF Medical 10 Staff, and J. Espinosa (Former Warden) (collectively, “Defendants”). A summary of Plaintiff’s 11 allegations follows: 12 On December 30, 2018, Plaintiff tripped and fell on the asphalt. She put in a co-pay 13 saying it felt like bone, and she was given crutches. She could not use the crutches over a long 14 distance, so she requested a wheelchair. She requested x-rays and was given a knee brace. 15 Plaintiff put in a co-pay stating it felt like more damage was being done by putting weight on her 16 right knee. On January 16, 2019, Plaintiff could not walk and was in pain. The TTA [sic] came 17 and took her to x-ray, after which she was given a wheelchair. Plaintiff was so relieved. The 18 next day, for no reason, defendant Attinello took her wheelchair and assigned her a walker 19 knowing she couldn’t walk. The wheelchair was taken on January 17, 2019 as retaliation for not 20 waiting for a ducat to x-ray, for going down on the yard immediately after being to 701 [sic] to 21 request a wheelchair, and that her x-ray be moved to stat [sic] due to excruciating pain. She was 22 told she would have to wait. Then they had to be the first responders on the yard. They issued a 23 ducat for January 17, 2019, to take the wheelchair. 24 Plaintiff had to ride the walker backwards for over 8 weeks and fell several times. She 25 had to walk on asphalt, and in the chow hall because people pushing her in the walker were 26 threatened with 115’s because it was dangerous. Defendant Attinello told Plaintiff several times 27 that she could have crutches but knowing it was impossible for Plaintiff to use crutches for the 28 distances at the prison, and she could not carry anything. Plaintiff told defendant Attinello that 1 putting weight on it felt like further damage was being done. Her knee got worse and worse. 2 Instead of bone, it felt like stuff inside was ground up. 3 Beginning in January 2019, Plaintiff requested an MRI. The MRI showed that the 4 fracture at the tip of her tibia spines [sic] that was visible in the x-ray image but not in the x-ray 5 report had healed, but now both meniscus had been torn. After the MRI, in June 2019, there was 6 an incident in Plaintiff’s cell. Plaintiff had to report to work to avoid being placed on disciplinary 7 because the problem was not being acknowledged. Her knee went out completely on June 11, 8 2019 and she needed assistance and requested to be taken to her cell. She was cuffed and called 9 in as disruptive. She frog-hopped until C/O Camarillo [not a defendant] saw what was happening 10 and brought a wheelchair. Plaintiff was taken to the cage in C program until an IDAP [sic] 11 worker came with a wheelchair and returned her to her cell. Plaintiff couldn’t walk and had to 12 have people make calls on her behalf from outside. She was finally given a wheelchair on June 13 19, 2019. 14 On June 3, 2019, Plaintiff saw defendant Attinello and signed a refusal for the medication 15 Lipitor because it is contraindicated for a person with liver problems. Defendant Attinello then 16 made the Lipitor a “hot med,” which meant Plaintiff would have to go to Medline every day to 17 refuse, although there was a progress note in Plaintiff’s file previously stating that the medication 18 was not needed. (ACP at 5:21.) Defendant Attinello knew Plaintiff could not walk and go to 19 Medline, and that she had not informed Plaintiff that she had made it a “hot med” so that Plaintiff 20 would receive 115’s for failure to either pick it up or refuse it. (Id. at 5:26.) Plaintiff received 21 115’s that she was told would be dismissed, and then got a 128 which they refused to remove 22 from her C-file. Plaintiff also received a chrono written by defendant C/O Snider stating that 23 there was nothing wrong with Plaintiff’s knee, and that she was “dramatic.” (Id. at 6:4.) Plaintiff 24 602’d to have it removed and was denied. There is an extensive 602 history and reasonable 25 accommodation record that was denied. Plaintiff put in a co-pay asking to document the bruises 26 she sustained being handcuffed and manhandled for refusing a direct order “to walk” but was 27 never called for an appointment. (Id. at 6:9.) Plaintiff had requested a court order for the surgery, 28 and also had to file this because she is awaiting the outcome of her other pending case and will 1 still require surgery. Although the Health Care Headquarters’ response received on December 2 8, 2019 states that “on October 24, 2019, a request for services order for a right knee arthroscopy 3 was approved during prospective review,” it was previously denied on August 30, 2019 and 4 September 26, 2019. (Id. at 6:14-16.) This action was commenced on November 5, 2019 and 5 the date stated by Headquarters’ Level Response of surgery approval of October 24, 2019 is 6 questionable since Plaintiff was seen by RN Jackson [not a defendant] on October 31, 2019 7 requesting if surgery had been approved and at that time it had not been approved. On November 8 15, 2019, the outside person (who made calls for Plaintiff to get the wheelchair in June) was 9 phoned by the institution on November 15, 2019 and told that it had not been approved because 10 they “needed more information,” which is what Dr. Taylor [not a defendant] told Plaintiff on 11 October 21, 2019. (Id. at 6:27.) 12 The Headquarters’ Level response, informing Plaintiff that surgery was approved on 13 October 24, 2019, goes on to state that if the appointment does not take place within the time 14 frames outlined by the Health Care Operational Manual, Plaintiff “can utilize the approved 15 process,” which she assumes means she can 602. (Id. at 7:5.) However, she is hoping to receive 16 an order for a response on her other pending action regarding her false imprisonment and 17 deprivation of rights, and Plaintiff is requesting that she can still request a court order ordering 18 the procedure if necessary. 19 Plaintiff has begun to have other serious medical concerns due to mobility and weight 20 gain. She is praying she will be dealing with these issues from home, but it’s hard to know, so 21 she felt she had to initiate this action and also because she would not even need surgery if the 22 wheelchair had not been taken away by defendant Attinello on January 17, 2019. As for 23 defendant Sergeant Alamo, he was the one responsible for hearing the 602 for a wheelchair on 24 January 27, 2019 and stated that Plaintiff was walking in the chow hall, as she had to because 25 she could not ride the walker backwards there. Also, he was the one who denied removal of the 26 128 chrono on 115’s Plaintiff was told at the hearing would be dismissed. Plaintiff saw him on 27 October 20, 2019. As to defendant Espinosa, the former Warden, she signed off on many of 28 Plaintiff’s 602’s regarding the situation and denied any relief. 1 Also, Plaintiff has requested her CCI to provide an Olsen review regarding her prior 2 prison term because she cannot be positive, but it recently came to her attention that defendant 3 Nurse Practitioner Valerie Attinello may have been the fiancé or friend of the man that Plaintiff 4 pled guilty to shooting in self-defense in Pacoima in 1990. Plaintiff needs to get the case number 5 and contact the public defender to know for sure the possibility as to a motive. Plaintiff has no 6 legal training and thought she should note it now in case she gets further documentation. There 7 is already evidence to support Plaintiff’s Claim #2, retaliation. 8 If it should work out that the Attorney General orders Plaintiff’s release from her illegal 9 unconstitutional custody, Plaintiff had health insurance in 2003 but has been incarcerated ever 10 since then. If she were to get insurance Plaintiff doesn’t know if the new insurance would cover 11 a pre-existing condition, or if it takes a long time to hear her case and as she may still need a 12 court order for surgery, she had to file this action. Also in summer 2008 she sprained something 13 in her right knee and had been rehabbing it prior to the fall on the asphalt. She had not needed 14 to seek medical attention for the sprain. The sprain also showed on the MRI. 15 As relief, Plaintiff states that she may still require a court order for knee repair surgery. 16 She also requests punitive damages. 17 IV. PLAINTIFF’S CLAIMS 18 The Civil Rights Act under which this action was filed provides: 19 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 20 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 21 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 . . . . 22 23 42 U.S.C. § 1983. 24 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 25 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 26 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 27 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 28 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 1 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 2 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 3 federal Constitution, Section 1983 offers no redress.” Id. 4 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 5 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 6 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 7 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 8 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 9 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 10 which he is legally required to do that causes the deprivation of which complaint is made.’” 11 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 13 established when an official sets in motion a ‘series of acts by others which the actor knows or 14 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 15 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 16 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 17 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 18 1026 (9th Cir. 2008). 19 A. Rule 8(a) of the Federal Rules of Civil Procedure 20 Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 21 exceptions, none of which apply to § 1983 actions. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 22 512 (2002). Under federal notice pleading, a complaint is required to contain “a short and plain 23 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 25 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 26 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations 27 are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 28 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 1 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 2 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 3 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, 4 legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 5 plausibility standard. 6 Plaintiff’s allegations in the First Amended Complaint are rambling and do not meet Rule 7 8(a)’s requirement to contain a “short and plain statement of the claim.” Plaintiff provides 8 unnecessary information touching on subjects such as her health insurance, her other pending 9 case, and whether defendant Attinello is connected to the man Plaintiff shot in self-defense in 10 1990. Plaintiff must allege with at least some degree of particularity overt acts which defendants 11 engaged in that support Plaintiff’s claim. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 12 1977); also see McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (a complaint must make 13 clear “who is being sued, for what relief, and on what theory, with enough detail to guide 14 discovery”). Plaintiff’s complaint must give each “defendant fair notice of what the plaintiff’s 15 claim is and the grounds upon which it rests,” Swierkiewicz, 534 U.S. at 512, with sufficient 16 facts to raise a right to relief above the speculative level. Plaintiff has not satisfied these 17 requirements in the First Amended Complaint. The court will grant Plaintiff leave to file a 18 Second Amended Complaint curing these deficiencies. 19 It is unclear from the face of the First Amended Complaint whether Plaintiff exhausted 20 her administrative remedies for all of the largely unrelated claims in the complaint before filing 21 this lawsuit. Plaintiff should address this issue more thoroughly in her Second Amended 22 Complaint. 23 B. Doe Defendants 24 Plaintiff names the Radiology Report Writer, whose name is unknown, as a defendant. 25 Unidentified, or “John Doe” defendants must be named or otherwise identified before service 26 can go forward. “As a general rule, the use of ‘John Doe’ to identify a defendant is not favored.” 27 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is advised that John Doe or 28 Jane Doe defendants cannot be served until Plaintiff has identified them as actual individuals and 1 amended his complaint to substitute names for John Doe or Jane Doe. For service to be 2 successful, the Marshal must be able to identify and locate defendants. 3 C. CCWF Medical Staff 4 Plaintiff names the “CCWF Medical Staff” as a defendant, without identifying names or 5 attributing any personal participation by individual members of the staff. Under section 1983, 6 Plaintiff must demonstrate that each defendant personally participated in the deprivation of his 7 rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). Plaintiff must 8 demonstrate that each defendant, through his or her own individual actions, violated Plaintiff’s 9 constitutional rights. Iqbal, 556 U.S. at 676-77. 10 In the First Amended Complaint, Plaintiff fails to allege facts showing that any of the 11 individual members of the medical staff, except Nurse Practitioner Attinello, personally acted 12 against her. Plaintiff may not allege that the “Medical Staff” collectively delayed or denied her 13 medical care. Plaintiff must demonstrate in her allegations that each Defendant, identified by 14 name, personally acted or failed to act, violating Plaintiff’s rights. Plaintiff may not attribute 15 liability to a group of defendants, but must “set forth specific facts as to each individual 16 defendant’s” deprivation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see 17 also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 18 Plaintiff shall be granted an opportunity to file a Second Amended Complaint, to cure 19 this deficiency. 20 D. Medical Claim – Eighth Amendment 21 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 22 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 23 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 24 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 25 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 26 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 27 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 28 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 2 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 3 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 4 may be manifested “when prison officials deny, delay or intentionally interfere with medical 5 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 6 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to 7 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical 8 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 9 407 (9th Cir. 1985)). 10 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 11 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 12 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 13 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 14 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the 15 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting 16 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of 17 medical malpractice or negligence is insufficient to establish a constitutional deprivation under 18 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a 19 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 20 “A difference of opinion between a prisoner-patient and prison medical authorities 21 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 22 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course 23 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . 24 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” 25 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 26 Plaintiff has shown that she had a serious medical need because she fell and injured her 27 knee. However, Plaintiff has not shown that any of the Defendants acted with deliberate 28 indifference to a substantial risk of serious harm to Plaintiff’s health. To state a medical claim 1 against a defendant, Plaintiff must name the defendant and allege facts demonstrating that the 2 individual defendant knew that Plaintiff had a serious medical need, knew that Plaintiff was at 3 substantial risk of serious harm to her health, but purposely disregarded the risk and failed to act 4 reasonably causing Plaintiff harm. Plaintiff must explain what happened in relation to individual 5 defendants, showing how the defendant violated her rights to adequate medical care. 6 Therefore, Plaintiff fails to state a medical claim under the Eighth Amendment against 7 any of the Defendants. 8 E. Retaliation – First Amendment Claim 9 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison 10 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 11 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the 12 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 13 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 14 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 15 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 16 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation 17 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity. 18 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 19 Plaintiff alleges in the First Amended Complaint that defendant Attinello took her 20 wheelchair away on January 17, 2019 as retaliation for not waiting for a ducat to x-ray and for 21 going down on the yard immediately after being to 701 to request a wheelchair, and that her x- 22 ray be moved to stat due to excruciating pain. This is not sufficient to state a claim for retaliation. 23 Plaintiff must show that she was exercising a right protected under the First Amendment, and 24 that defendant Attinello acted adversely against Plaintiff because she was exercising a protected 25 right, causing Plaintiff injury - or chilling - resulting from defendant Attinello’s adverse action 26 against Plaintiff. Plaintiff must also allege that defendant Attinello’s action did not reasonably 27 advance a legitimate correctional goal. Plaintiff has not done so. Plaintiff fails to demonstrate a 28 causal nexus between the alleged retaliation and any constitutionally protected activity showing 1 that the retaliatory act was done because of the protected activity. Accordingly, Plaintiff fails to 2 state a cognizable retaliation claim. 3 V. CONCLUSION AND ORDER 4 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable 5 claims in the First Amended Complaint against any of the Defendants for violating her 6 constitutional or other federal rights. Under Rule 15(a) of the Federal Rules of Civil Procedure, 7 “[t]he court should freely give leave to amend when justice so requires.” Plaintiff is granted 8 leave to file a Second Amended Complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 9 1448-49 (9th Cir. 1987). 10 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 11 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights, 12 Iqbal, 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must set forth “sufficient factual matter 13 . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). 14 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 15 Plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 16 complete in itself without reference to any prior pleading. This requirement exists because, as a 17 general rule, an amended complaint supersedes the original complaint. See Ramirez v. County 18 of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the 19 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once 20 Plaintiff files an amended complaint, the original pleading no longer serves any function in the 21 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 22 involvement of each defendant must be sufficiently alleged. The amended complaint should be 23 clearly and boldly titled “Second Amended Complaint,” refer to the appropriate case number, 24 and be an original signed under penalty of perjury. 25 Based on the foregoing, IT IS HEREBY ORDERED that: 26 1. Plaintiff’s First Amended Complaint is DISMISSED for failure to state a claim, 27 with leave to amend; 28 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 1 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file 2 a Second Amended Complaint curing the deficiencies in her claims identified in 3 this order; 4 4. Plaintiff shall caption the amended complaint “Second Amended Complaint” and 5 refer to the case number 1:19-cv-01579-NONE-GSA-PC; and 6 5. Plaintiff’s failure to comply with this order shall result in a recommendation that 7 this action be dismissed in its entirety for failure to state a claim. 8 IT IS SO ORDERED. 9 10 Dated: October 29, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28