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Javier Diego Uribe v. S. Taylor

April 29, 2011

JAVIER DIEGO URIBE, PLAINTIFF,
v.
S. TAYLOR, ET AL., DEFENDANT.



ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1). Plaintiff commenced this action by filing his civil rights complaint and a motion top proceed in forma pauperis on September 27, 2010. On April 12, 2011, plaintiff filed a documents styled as a "Motion For: Permission To Provide The Court With Updated Information In Support of Plaintiff's Cause of Action, and Motion Seeking Monitary (sic) Compensation for Deliberate Acts of Retaliation." (Doc. No. 5).

Below, the court will address plaintiff's filings.

I. In Forma Pauperis Application

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).

II. Plaintiff's Motion For Permission to Provide the Court with Updated Information

Through this motion it appears that plaintiff is seeking to supplement the allegations of his complaint. Therein, plaintiff advances new allegations which were not included in his complaint filed on September 27, 2010, and suggests that he seeks to add a retaliation claim to his complaint based on those allegations. Plaintiff is advised that the Local Rules of this court require that an action proceed on a pleading that is complete in itself without reference to prior pleadings. See Local Rule 220. While both the Federal Rules of Civil Procedure and the Local Rules of this court contemplate supplementation of an operative complaint under certain circumstances, as a general rule the court does not authorize supplemental complaints. In this court's experience the filing of supplemental complaint presents an undue risk of piecemeal litigation that precludes orderly resolution of cognizable claims. Therefore, the court will deny plaintiff's motion for permission to provide the court with updated information, dismiss plaintiff's complaint and grant plaintiff leave to file an amended complaint so that all of his allegations and claims can be presented in a single pleading.

III. Requirements Applicable to the Amended Complaint

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Plaintiff must allege facts demonstrating how the conditions complained of resulted in a deprivation of his federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named defendant was involved in the deprivation of plaintiff's rights. Vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

III. Legal Standards Governing a Retaliation Claim

"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal ." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.2005). Thus, to prevail on a retaliation claim, a prisoner must allege facts demonstrating that he was retaliated against for exercising a constitutional right and that retaliation was a substantial or motivating factor for the defendant's alleged acts or conduct. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977); see also Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314-16 (9th Cir. 1989). The court must "'afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt v. ...


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