United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (ECF No.
LAWRENCE J. O’NEILL, UNITED STATES CHIEF DISTRICT
Alfonso Padron, proceeding pro se filed this civil rights
complaint pursuant to 28 U.S.C. § 1983 on April 19, 2016
which was dismissed for failure to state a claim. (ECF Nos.
1, 4.) The action was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 302. On May 27, 2016, Plaintiff filed a first amended
complaint. (ECF No. 5.)
2, 2016, the Magistrate Judge filed a findings and
recommendations (“F&Rs”). The F&Rs
recommended dismissing certain claims and defendants for
failure to state a claim. The F&Rs were served on
Plaintiff and contained notice that any objections were to be
filed within thirty days from the date of service. The period
for filing objections has passed and no objections have been
has stated a claim for screening purposes against Defendant
Lara for violation of his right to privacy under the First
Amendment and state law claims of violation of the right to
privacy and negligence. However, Plaintiff’s first
amended complaint failed to state any other cognizable
claims. The Court will provide Plaintiff with the opportunity
to file an amended complaint curing the deficiencies
identified by the Court in the F&Rs. Noll v.
Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
Plaintiff does not wish to file an amended complaint and is
agreeable to proceeding only against Defendant Lara on the
First Amendment and state law claims, Plaintiff may so notify
the Court in writing. Plaintiff will then be provided with a
summons and a USM-285 form for completion and return. Upon
receipt of the forms, the Court will direct the United States
Marshal to initiate service of process on Defendant Lara.
Plaintiff elects to amend, his second amended complaint
should be brief, Fed.R.Civ.P. 8(a), but must state what each
named defendant did that led to the deprivation of
Plaintiff’s constitutional or other federal rights,
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). Although accepted as true, the “[f]actual
allegations must be [sufficient] to raise a right to relief
above the speculative level . . . .” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). The mere possibility of misconduct is insufficient
to state a claim. Iqbal, 556 U.S. at 679. Further,
Plaintiff may not change the nature of this suit by adding
new, unrelated claims in his amended complaint. George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no
an amended complaint supersedes the original complaint,
Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th
Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th
Cir. 1987), and must be “complete in itself without
reference to the prior or superseded pleading, ” Local
Rule 220. Therefore, “[a]ll causes of action alleged in
an original complaint which are not alleged in an amended
complaint are waived.” King, 814 F.2d at 567
(citing to London v. Coopers & Lybrand, 644 F.2d
811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d
Plaintiff is advised that his amended complaint must comply
with the Federal Rules of Civil Procedure which requires a
short plan statement of facts. Plaintiff’s first
amended complaint is comprised mainly of legal argument and
case citation. Plaintiff’s second complaint shall not
contain any legal arguments or cite to any cases or statutes.
If Plaintiff’s complaint fails to comply with these
requirements it will be stricken from the record.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this Court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, the Court finds the F&Rs to be supported by the
record and by proper analysis.
IT IS HEREBY ORDERED that:
1. The F&Rs, filed June 2, 2016, is ADOPTED IN FULL;
2. Plaintiff’s official capacity and municipal
liability claims are dismissed from this action without leave
3. Defendant City of Parlier is dismissed from this action;
4. Within thirty days from the date of service of this order,
Plaintiff shall either notify the Court that he is willing to
proceed on those claims found to be cognizable against