(PC) McClendon v. Secretary of CDCR ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS E. MCCLENDON, No. 2:21-cv-2088 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 SECRETARY OF CDCR, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1, 19 5. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. Also before this court is plaintiff’s request for a preliminary 21 injunction related to his claim involving indecent exposure identifiers, and that a scheduling order 22 issue allowing him to identify defendants. See generally ECF No. 1 at 1, 19. 23 For the reasons stated below, plaintiff’s application to proceed in forma pauperis will be 24 granted, and plaintiff will be directed to file a first amended complaint. In addition, plaintiff’s 25 request that a scheduling order issue will be denied. It will also be recommended that plaintiff’s 26 request for injunctive relief be denied. 27 //// 28 //// 1 I. APPLICATION TO PROCEED IN FORMA PAUPERIS 2 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 3 1915(a). ECF No. 5. Accordingly, the request to proceed in forma pauperis will be granted. 4 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 5 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 6 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 7 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 8 forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments of 9 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 10 These payments will be forwarded by the appropriate agency to the Clerk of Court each time the 11 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 12 1915(b)(2). 13 II. SCREENING REQUIREMENT 14 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (brackets added); Franklin v. Murphy, 745 F.2d 16 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on 17 indisputably meritless legal theories’ or whose ‘factual contentions are clearly baseless.’” 18 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (brackets added) (quoting Neitzke, 490 19 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 20 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully 21 pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations 22 omitted). 23 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 24 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 25 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 26 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 27 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 28 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 1 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 2 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 3 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 4 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 5 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 6 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 7 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 8 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 9 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets added) 10 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 11 factual content that allows the court to draw the reasonable inference that the defendant is liable 12 for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint 13 under this standard, the court must accept as true the allegations of the complaint in question, see, 14 e.g., Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as 15 well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in 16 the plaintiff’s favor, see Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 17 III. THE COMPLAINT 18 Plaintiff names the Secretary of the California Department of Corrections and 19 Rehabilitation (“CDCR”) as well as five employees at California Medical Facility (“CMF”) and 20 five employees at California Health Care Facility (“CHCF”) as defendants in this action.1 ECF 21 No. 1 at 1-2. He contends that defendants violated his Eighth Amendment rights when, after 22 plaintiff was written up and found guilty of exhibitionism, defendants: (1) forced him to be 23 identified as an IEX (indecent exposure) inmate in the general population2 and did not protect 24 him, which led to him being attacked, and (2) failed to provide him with the mental health 25 26 1 Plaintiff also names nine unidentified correctional officers at CMF and nine unidentified correctional officers at CHCF as defendants. ECF No. 1 at 2. 27 2 Plaintiff states he was required to wear an IEX jumpsuit every time he left his cell. ECF No. 1 at 6. He also states that an IEX sign was put on his cell door, and a yellow placard covering his 28 cell window was posted for everyone to see. Id. 1 treatment that he needed to address his exhibitionism, suicidal behavior, and depression. Id. at 4- 2 16. 3 Plaintiff claims that defendants’ actions and/or inaction led to the attack, which left him 4 with a black eye and a bloody nose. ECF No. 1 at 4. He states that he is constantly threatened by 5 other inmates who have “zero tolerance” for IEX classified inmates.3 Id. at 14. Plaintiff also 6 alleges that the IEX identification and placement in the general population have led to him being 7 fearful of leaving his cell, of showering, and of attending individual therapy. Id. at 11, 16. 8 Finally, plaintiff claims that defendants forcing him to be identified as an IEX inmate has 9 interfered with his ability to get treatment for his mental health problems, which in turn, has 10 increased his depression, his urges to self-harm, and his suicidal ideation. Id. at 14, 16. 11 Plaintiff asks the court to issue a preliminary injunction that requires the CDCR to repeal 12 its IEX policy. ECF No. 1 at 19. He also asks the court to “issue a scheduling order to permit 13 [him] to identify and name unidentified defendants.” Id. (brackets added). 14 IV. DISCUSSION 15 A. General Deficiencies in Complaint 16 As a threshold matter, plaintiff’s complaint fails to state a claim upon which relief can be 17 granted. This is because neither of the two claims identifies with sufficient specificity which 18 defendants took which specific actions that plaintiff alleges violated his constitutional rights.4 19 See generally ECF No. 1 at 4-16. This fact alone is sufficient to require plaintiff to amend the 20 complaint. 21 //// 22 23 3 Plaintiff states that one of the grievances he filed ended in a determination that some of the CMF staff’s actions were “not consistent” with the prison’s operations manual and that “staff 24 [had] violated policy.” ECF No. 1 at 8. Aside from the fact that the misapplication of prison regulations does not typically rise to the level of a violation of constitutional right (see Cousins v. 25 Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009)), plaintiff has failed to identify the prison 26 employees who allegedly failed to protect him. 4 Plaintiff does state that defendant E. Pedersen at CHCF failed to grant him relief on a related 27 grievance because plaintiff, “[had] received 22 RVR[]s for IEX with prior convictions.” ECF No. 1 at 11 (brackets added). However, as discussed herein, defendant Pedersen’s denial of plaintiff’s 28 grievance regarding his IEX classification fails to state a claim. 1 In addition, the court notes that at the time plaintiff filed the instant complaint, he was not 2 housed at CMF, nor is he currently housed there. CHCF is where he is currently being held. See 3 ECF No. 1 at 1. Therefore, to the extent that the complaint also requests that CMF defendants be 4 enjoined from identifying plaintiff as an IEX prisoner and not to place him in the general 5 population (see id. at 7-10), the motion for injunctive relief must be denied. “Past exposure to 6 illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . 7 if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 8 495-96 (1974); Civil Beat Law Center for the Public Interest, Inc. v. Centers for Disease Control 9 & Prevention, 929 F.3d 1079, 1086 (9th Cir. 2019) (citing Littleton). Despite these deficiencies, 10 the court will address the other, potentially curable, deficiencies in each of plaintiff’s claims so 11 that they can be avoided on amendment. 12 B. Claim One: Indecent Exposure Classification; Failure to Protect and/or Threat to 13 Safety 14 1. Plaintiff’s Allegations 15 In Claim One, plaintiff alleges that defendants classifying him as an IEX inmate and 16 requiring that he be identified as such within the general prison population led to him being 17 attacked and injured in violation of his Eighth Amendment right to safety. ECF No. 1 at 4, 12-13. 18 He further alleges that inmates diagnosed with exhibitionism are “predisposed to physical and 19 sexual assault,” and that “to punish them . . . with discipline under ‘[prison rules and regulations]’ 20 while in a general population setting” violates their Eighth and Fourteenth Amendment rights. Id. 21 at 5 (brackets added). The IEX classification and general population placement, plaintiff argues, 22 “posed an imminent risk to his overall welfare” because in prison, the worst label to have is that 23 of “sex offender.” Id. at 7. As a result, plaintiff alleges, no matter where he goes, he is told he 24 will be stabbed because he is a “sexual predator.” Id. 25 Plaintiff also states that despite CMF’s Chief Deputy Warden D. Hurtado having 26 determined that “staff actions were not consistent with the guidelines set forth in [the CDCR’s 27 Department Operations Manual] [S]ection 52100.3,” and that “staff violated policy” (ECF No. 1 28 at 8) (brackets added), CDCR staff members at both CMF and CHCF continued to make plaintiff 1 wear the IEX jumpsuit and left the IEX identifiers on his cell window and door (id. at 8-13). 2 They also “looked the other way when he was threatened” by other inmates. Id. at 8-9. As a 3 result, plaintiff requests that defendants be enjoined from continuing these practices. Id. at 19. 4 2. Discussion 5 a. Indecent Exposure Classification; Violation of Prison Regulations 6 Prisoners have no constitutional right to a particular classification status. Hernandez v. 7 Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (citations omitted). Nor do they have a right to be 8 housed in a particular part of a prison. See Grayson v. Rison, 945 F.2d 1064, 1067 (9th Cir. 9 1991). Furthermore, inmates have no Eighth Amendment right to be housed in a manner that 10 avoids confrontation. Atiyeh v. Capps, 449 U.S. 1312, 1315-16 (1981). 11 In addition, a prison official’s failure to follow a prison’s own rules or policies does not, 12 per se, violate the constitution. Cousins v. Lockyer, 568 F.3d 1063, 1070-71 (9th Cir. 2009). 13 Finally, identifying a prisoner as a sex offender,5 without more, does not violate the Eighth 14 Amendment’s prohibition against cruel and unusual punishment. See Neal v. Shimoda, 131 F.3d 15 818, 833 (9th Cir. 1997) (finding labeling prisoner as sex offender and requiring participation in 16 related offender programming did not violate contemporary standards of decency). 17 For these reasons, plaintiff’s allegations that his constitutional rights were violated when 18 defendant prison officials classified him as a sex offender, failed to follow prison rules and 19 regulations, and failed to correct their practices in accordance with CMF Chief Deputy Warden 20 D. Hurtado’s grievance findings,6 fail to state claims upon which relief may be granted. Although 21 the likelihood of plaintiff being able to make these claims viable upon amendment appears low, 22 he will be given the opportunity to do so. 23 5 Plaintiff points out that his exhibitionism is a mental health condition that requires treatment 24 and that when issued a rules violation report in 2020 for indecent exposure, he was “presumed guilty” of it at the related disciplinary hearing. See ECF No. 1 at 5-7. However, plaintiff does 25 not allege that he was deprived of due process during the proceedings that led to the 26 determination that he should be classified as a sex offender. See generally ECF No. 1. 6 Plaintiff alleges that Chief Deputy Warden Hurtado’s review of plaintiff’s grievance led to a 27 finding that the actions of some CMF prison staff “were not consistent with” guidelines set forth in DOM Section 52100.3. ECF No. 1 at 8. Plaintiff does not, however, clearly identify which 28 part of Section 52100.3 defendants were determined to have violated. See id. at 8-10. 1 b. Failure to Protect and/or Threat to Safety 2 “[W]hen the State takes a person into its custody and holds him there against his will, the 3 Constitution imposes upon it a corresponding duty to assume some responsibility for his safety 4 and general well-being.” DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 5 189, 199-200 (1989). “[An] affirmative duty to protect arises . . . from the limitation which [the 6 State] has imposed on his freedom to act on his own behalf.” Id. at 200 (brackets added). 7 The duty to protect a prisoner from serious harm requires that prison officials take 8 reasonable measures to guarantee the safety and well-being of the prisoner. See Farmer v. 9 Brennan, 511 U.S. 825, 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 10 Specifically, prison officials have a duty to protect prisoners from violence at the hands of other 11 prisoners. Farmer, 511 U.S. at 833. 12 To state a cognizable Eighth Amendment claim on a failure to protect theory, a prisoner 13 must reasonably allege that a correctional official knew of but disregarded an excessive risk to his 14 health or safety. Farmer, 511 U.S. at 837. There must be evidence which shows that a defendant 15 acted with a “sufficiently culpable state of mind.” Hearns v. Terhune, 413 F.3d 1036, 1042 (9th 16 Cir. 2005). “[T]he official must both be aware of facts from which the inference could be drawn 17 that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 18 U.S. at 837. “[I]t is enough that the official acted or failed to act despite his knowledge of a 19 substantial risk of serious harm.” Id. at 842 (citations omitted). 20 In general, allegations of verbal harassment do not state a viable Eighth Amendment 21 claim. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). A claim based on verbal harassment 22 can succeed only if the offending comments were “gross even for a prison setting and were 23 calculated to and did cause [plaintiff] psychological damage.” Keenan, 83 F.3d at 1092. 24 Plaintiff has not provided enough information to support his failure to protect claim. With 25 respect to the specific incident in which he states he was attacked and left with a black eye and a 26 bloody nose (ECF No. 1 at 4), plaintiff will need to identify the defendants who were made aware 27 that he had been threatened because of his IEX status and/or that he was in danger, yet failed to 28 act to prevent him from being attacked. He must also indicate why he believes those defendants 1 were aware that he had been threatened. Finally, to the extent plaintiff argues that certain 2 defendants failed to protect him from verbal threats and/or abusive and threatening rants of other 3 inmates (see id. at 8, 13), he must provide more detail about the verbal harassment and any 4 resulting psychological harm he experienced due to specific defendants’ failure to protect him. 5 He will be given the opportunity to provide this information in an amended complaint. 6 C. Claim Two: Deliberate Indifference to Serious Medical Need 7 1. Plaintiff’s Allegations 8 In Claim Two, plaintiff alleges that defendants at both CMF and CHCF were deliberately 9 indifferent to his serious mental health needs in violation of his Eighth Amendment rights when 10 they interfered with his ability to access and receive mental health treatment in a “[therapeutic] [] 11 and hospitable environment.” ECF No. 1 at 10, 13-14 (brackets added). Specifically, he 12 contends that because of the IEX identification in the general population, he has “had to refuse” 13 multiple medical and therapy appointments as well as exercise, canteen, and visitation 14 opportunities due to his IEX classification and the related discipline imposed upon him while 15 placed in the general population. Id. at 8. He also points out that the IEX identification 16 requirement continued to be imposed upon him at CHCF despite having been transferred there 17 after multiple suicide attempts. Id. at 10. 18 Plaintiff alleges that defendants knew or should have known that “allowing, and or 19 causing [him] to isolate in his cell because of being forced to wear an IEX jumpsuit each time he 20 exited his cell would contribute to his decompensation[] and cause him to engage in self injurious 21 behavior.” ECF No. 1 at 14. He further asserts that defendants knew or should have known that 22 his mental health diagnosis of exhibitionism required them to place him in a program that could 23 provide him with the appropriate treatment to which he was entitled under the Eighth 24 Amendment. Id. at 14-15. 25 2. Discussion 26 “[T]he government has an obligation to provide medical care for those whom it punishes 27 by incarceration.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citing Estelle 28 v. Gamble, 429 U.S. 97 (1976)). To state a viable claim of deliberate indifference to serious 1 medical need, a plaintiff must show that (1) a serious medical need exists, and (2) defendant’s 2 response was deliberately indifferent. Serious medical need can be shown by demonstrating that 3 a failure to treat a prisoner could result in significant injury or worsening pain. Jett v. Penner, 439 4 F.3d 1091, 1096 (9th Cir. 2006). A deliberately indifferent response can be shown by a 5 purposeful act or failure to respond to a prisoner’s pain or possible medical need coupled with 6 harm caused by that indifference. Id. “A heightened suicide risk or an attempted suicide is a 7 serious medical need.” Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), vacated, 563 8 U.S. 915 (2011), opinion reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011). 9 Regardless of why plaintiff began decompensating and engaging in self-harming behavior, 10 if defendants were aware that plaintiff’s mental health condition was deteriorating and threatening 11 his safety, and did nothing to assist him with getting necessary treatment, plaintiff may be able to 12 state a deliberate indifference claim. If plaintiff wishes to proceed with this claim, he must 13 clearly identify in an amended complaint the individuals at each institution who were aware of his 14 declining mental state and the risks it posed, yet did nothing to assist him with getting the help he 15 needed. Specifics regarding why plaintiff believes certain defendants were aware that he was 16 decompensating should also be provided. 17 V. PRELIMINARY INJUNCTION AND SCHEDULING ORDER REQUESTS 18 Within the complaint, plaintiff has also requested that the court issue a preliminary 19 injunction that stops defendants from forcing him to wear an IEX jumpsuit in general population, 20 have an IEX sign on his cell door, and have related yellow placards covering his cell window. 21 ECF No. 1 at 1, 19. He also asks the court to issue a scheduling order, presumably to give him 22 more time to identify defendants in this case. Id. at 19. These requests must be denied. 23 A. Request for Preliminary Injunction 24 When evaluating the merits of a motion for preliminary injunctive relief, the court 25 considers whether the movant has shown that “he is likely to succeed on the merits, that he is 26 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities 27 tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources 28 Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th 1 Cir. 2009) (quoting Winter). A preliminary injunction is appropriate when a plaintiff 2 demonstrates . . . “serious questions going to the merits and a hardship balance [] tips sharply 3 toward the plaintiff, . . . assuming the other two elements of the Winter test are also met.” 4 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). An 5 injunction against individuals who are not parties to the action is strongly disfavored. See 6 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) (noting constitutional 7 rule that court has no power to adjudicate personal claim unless it has jurisdiction over person 8 of defendant). 9 Considering the Winter factors, plaintiff’s motion for a preliminary injunction must be 10 denied. For the reasons explained above, the complaint before the court fails to state any viable 11 cause of action. Consequently, at this stage in the proceedings, it cannot be said that plaintiff is 12 likely to succeed on the merits of his complaint. This is enough to deny plaintiff’s request for 13 injunctive relief. See Winter, 555 U.S. at 20 (2008); Alliance for the Wild Rockies v. Cottrell, 14 632 F.3d 1127, 1131-32 (9th Cir. 2011). 15 In any event, prison officials are given significant latitude regarding how they implement 16 safety and security protocols in their institutions. Bell v. Wolfish, 441 U.S. 520, 547 (1979) 17 (“Prison administrators . . . should be accorded wide-ranging deference in the adoption and 18 execution of policies and practices that in their judgment are needed to preserve internal order and 19 discipline and to maintain institutional security.”); Norwood v. Vance, 591 F.3d 1062, 1066 (9th 20 Cir. 2010) (quoting Bell). Nothing in the complaint before the court suggests that the use of IEX 21 identifiers lies outside the bounds of the State’s authority or lacks legitimate penological purpose. 22 See Neal, 131 F.3d at 833. 23 Finally, for the reasons discussed in screening the complaint, no proper defendant has 24 been identified and it is unclear that plaintiff will be able to state a cognizable claim for relief. 25 Accordingly, there is no basis for the court to exercise jurisdiction over any state official who 26 may be in a position to grant the requested injunctive relief. 27 For all these reasons, the undersigned will recommend that plaintiff’s request for a 28 preliminary injunction be denied. 1 B. Request for a Scheduling Order 2 Plaintiff requests a scheduling order which will “permit [him] to identify and name 3 unidentified defendants.” ECF No. 1 at 19. This request must be denied because plaintiff has yet 4 to file a complaint that can be served. Consequently, the motion is premature. Should an 5 amended complaint be filed that is found to state a claim and is served on defendants, a 6 scheduling order will issue in due course. There will be no need for a motion or request. 7 VI. LEAVE TO AMEND 8 Because plaintiff may be able to allege facts and/or provide information to remedy the 9 deficiencies of his claims, he will be given the opportunity to amend his complaint. The 10 complaint must identify each defendant by name and with specificity, as well as allege in specific 11 terms how each one is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 12 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 13 or connection between a defendant’s actions and the claimed deprivation. See Arnold, 637 F.2d 14 at 1355; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and 15 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 16 Bd. of Regents of Univ. of Alaska, 673 F.2d at 268 (citations omitted) (brackets added). 17 At the same time, however, the federal rules contemplate brevity. Specifically, the 18 amended complaint should contain a “short and plain statement of the claim showing that the 19 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see Swierkiewicz v. Sorema N.A., 534 U.S. 20 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, which was 21 adopted to focus litigation on the merits of a claim.”). 22 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 23 his amended complaint complete. Local Rule 220 requires that an amended complaint be 24 complete in itself without reference to any prior pleading. This is because, as a general rule, an 25 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 26 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 27 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 28 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 1 complaint, the previous complaints no longer serve any function in the case. Therefore, in an 2 amended complaint, as in an original complaint, each claim and the involvement of each 3 defendant must be sufficiently alleged. 4 VII. PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT 5 The complaint does not state any claim for relief and will not be served. You are being 6 given the opportunity to file an amended complaint that clearly explains what each defendant did 7 that violated your rights. 8 To state a claim that defendants were deliberately indifferent to your safety, you must 9 identify the individuals who knew you were being threatened with specific harm from other 10 inmates, explain how they knew you were in danger, and provide facts showing that they failed to 11 take action to keep you safe. It is not enough to say that your IEX identifiers put you at risk in 12 general. 13 To state a claim for deliberate indifference to your serious medical or psychiatric needs, 14 you must identify the particular individuals who were aware of the fact that your mental health 15 was deteriorating and you were at risk of harm, yet failed to get you the medical and/or mental 16 health help that you needed. The facts that you allege must show that each defendant named on 17 this claim acted with a wrongful state of mind. 18 Because your original complaint does not include facts that state any claim for relief, the 19 magistrate judge is recommending that your request for a preliminary injunction be denied. The 20 district judge will make the final decision about that. 21 Finally, your request for a scheduling order is denied because a schedule cannot be issued 22 until there is a complaint that has been screened and served. If that happens after you amend, a 23 scheduling order will be issued at the appropriate time without the need for you to make a 24 request. 25 CONCLUSION 26 Accordingly, IT IS HEREBY ORDERED that: 27 1. The Clerk of Court shall: 28 a. Randomly assign a District Judge to this action, and ] b. Send plaintiff a copy of this court’s Civil Rights Complaint By A Prisoner form. 2 2. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 5) is GRANTED. 3 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. 4 | Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 5 || 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 6 || Director of the California Department of Corrections and Rehabilitation filed concurrently 7 || herewith. 8 4. Within thirty days from the date of this order, plaintiff shall file a first amended 9 || complaint. 10 5. Plaintiffs request that a scheduling order issue (ECF No. 1 at 19) is DENIED as 11 | premature. 12 IT IS FURTHER RECOMMENDED that plaintiff's motion for a preliminary injunction 13 || (ECF No. | at 1, 19) be DENIED. 14 These findings and recommendations will be submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 16 | after being served with these findings and recommendations, plaintiff may file written objections 17 || with the court. The document should be captioned “Objections to Magistrate Judge's Findings 18 || and Recommendations.” Failure to file objections within the specified time may result in a 19 || waiver of the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153, 1157 (9th 20 | Cir. 1991). 21 || DATED: September 26, 2022 ~ 22 AMhun—Clorne ALLISON CLAIRE 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 13