Khan v. Payton ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MUHAMMAD KHAN, 11 Case No. 20-cv-03086 BLF (PR) Plaintiff, 12 ORDER SCREENING SECOND v. AMENDED COMPLAINT AND 13 DISMISSING WITH LEAVE TO AMEND 14 M. PAYTON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner currently housed at the Correctional Training Facility in 18 Soledad, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against 19 Correctional Officer M. Payton for the violation of Plaintiff’s rights while he was at San 20 Quentin State Prison’s Reception Center. Dkt. No. 1. The Court dismissed the first 21 amended complaint with leave to amend, to attempt to state sufficient facts to state an 22 equal protection claim. Dkt. No. 22. Plaintiff filed a second amended complaint which the 23 Court screens below. Dkt. No. 38. 24 25 DISCUSSION 26 A. Standard of Review 27 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 The second amended complaint is deficient because it only provides Plaintiff’s 13 causes of action without a statement of facts in support of his claims. Dkt. No. 38. The 14 causes of actions include the statement, “Plaintiff realleges and incorporates by reference 15 paragraphs 1-88,” for example, but the pleading does not include any such paragraphs. Id. 16 at ¶ 89; see also, id. at ¶¶ 91, 96, 100, 103, 109. Plaintiff’s second amended complaint 17 appears to be a revision of the last few pages of his first amended complaint, beginning 18 with paragraph 89. Compare Dkt. No. 38 at 2-7 with Dkt. No. 18 at 18-23. He simply 19 renumbered the causes of action after crossing out the equal protection claim, which was 20 dismissed with leave to amend, and a state claim under California Government Code § 21 19572, which was dismissed with prejudice for failure to state a claim. Dkt. No. 38 at 3, 22 18-19. Furthermore, although the Court dismissed Plaintiff’s RLUIPA claim for damages 23 with prejudice, Plaintiff has now included the RLUIPA claim in the second amended 24 complaint, seeking declaratory and injunctive relief. Id. at 4. 25 Plaintiff was advised that a second amended complaint supersedes the original and 26 the first amended complaints, and that he may not make references to either the original or 1 is deficiently plead. 2 In the interest of justice, Plaintiff shall be granted one final opportunity to file a 3 third and final amended complaint that contains a clear statement of all his claims, 4 including sufficient factual allegations, to proceed with this action. 5 6 CONCLUSION 7 For the reasons state above, the Court orders as follows: 8 1. Within twenty-eight days from the date this order is filed, Plaintiff shall file 9 a THIRD amended complaint using the court’s form complaint to correct the deficiencies 10 discussed above by providing a complete statement of facts to support all the causes of 11 actions set forth in the complaint. The third amended complaint must include the caption 12 and civil case number used in this order, i.e., Case No. C 20-cv-03086 BLF (PR), and the 13 words “THIRD AMENDED COMPLAINT” on the first page. Plaintiff must answer all 14 the questions on the form in order for the action to proceed. Plaintiff is reminded that the 15 third amended complaint supersedes all prior complaints, and Plaintiff may not make 16 references to the original, first, or second amended complaints. Claims not included in the 17 third amended complaint are no longer claims and defendants not named in the third 18 amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 19 (9th Cir.1992). 20 In the alternative, Plaintiff may file notice that he wishes to proceed solely on the 21 cognizable claims identified in his first amended complaint, i.e., First Amendment claim 22 for the denial of religious freedom, Eighth Amendment claim for the denial of food, 23 violation of due process, and state law claims for intentional infliction of emotional 24 distress and negligence by SQSP, and strike the equal protection claim from the amended 25 complaint. See Dkt. No. 22 at 4-5. The Court will then deem the first amended complaint 26 as the operative complaint in this matter and strike the second amended complaint from the 1 2. Failure to respond in accordance with this order by filing a third amended 2 || complaint in the time provided will result in the dismissal of this action for failure to state 3 || claim based on the deficiencies of the second amended complaint which fails to state any 4 || cognizable claim. 5 3. The Clerk shall include two form complaints with a copy of this order to 6 || Plaintiff. 7 IT ISSO ORDERED. 8 || Dated: __December 8, 2022 fownfhacnan 9 BETH LABSON FREEMAN United States District Judge 10 11 12 2B 14 o 15 16 Oo Z 18 19 20 21 22 23 24 Order of Dismissal with Leave to Amend 25 PRO-SE\BLF\CR.20\03086Khan_screen.SAC 26 27