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Herd v. Hartley

United States District Court, E.D. California

April 3, 2014

SCOTT HERD, Plaintiff,
v.
JAMES D. HARTLEY, et al., Defendants.

ORDER GRANTING MOTION TO FILE AMENDED COMPLAINT AND TO ATTACH EXHIBITS (ECF No. 16) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION (ECF No. 17) FOURTEEN DAY DEADLINE

BARBARA A. McAULIFFE, Magistrate Judge.

I. Background

Plaintiff Scott Herd ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on June 6, 2012. The matter was transferred to this Court on October 12, 2012. On October 29, 2013, the Court dismissed Plaintiff's complaint with leave to amend within thirty days. (ECF No. 13.) The Court granted Plaintiff's request for a sixty day extension of time to amend his complaint. (ECF No. 15.)

II. Motion to Amend and to Attach Exhibits

On February 3, 2014, Plaintiff filed a motion to amend his complaint pursuant to Federal Rule of Civil Procedure 15. Plaintiff also requested permission to remove the exhibits from his July 9, 2012 complaint, attach them to his first amended complaint and incorporate them by reference into his first amended complaint. (ECF No. 16.) Plaintiff also filed his first amended complaint. (ECF No. 17.)

Plaintiff's request for leave to amend is unnecessary. The Court previously granted Plaintiff leave to amend his complaint and granted Plaintiff an extension of time. Although moot, Plaintiff's request for leave to amend is GRANTED.

Plaintiff also requests to remove the exhibits from his original complaint, attach them to his first amended complaint and incorporate them by reference. Generally, the Court requires that all amended pleadings contain copies of all exhibits referred to in the changed pleading. Local Rule 220. However, a party may obtain permission from the Court for removal of any exhibits attached to a superseded pleading so that the exhibits may be attached to the changed pleading. Local Rule 220. In this instance, the Court finds Plaintiff's request reasonable and Plaintiff's request that the exhibits be removed from his original pleading and attached to his amended pleading is GRANTED.

III. Findings and Recommendations Regarding Dismissal

A. Screening Requirement and Standard

Plaintiff's first amended complaint, filed on February 3, 2014, is currently before the Court for screening. (ECF No. 17.) On screening, Plaintiff's first amended complaint is considered to include those exhibits attached to his July 9, 2012 pleading.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc. , 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal , 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere ...


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