United States District Court, N.D. California
ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO
M. RYU United States Magistrate Judge
Douglas Flaugher filed this suit along with an application to
proceed in forma pauperis (“IFP”) and a
motion to appoint counsel. [Docket Nos. 1, 2, 4]. The court
granted Plaintiff's IFP application, and dismissed the
complaint with leave to amend to remedy the deficiencies
noted in the order. [Docket No. 6]. The court denied the
motion to appoint counsel. [Docket No. 6]. The court
instructed Plaintiff to file an amended complaint by March
30, 2017. Docket No. 6]. On March 27, 2017, Plaintiff filed a
document entitled, “Motion of Discovery 14th
Amendment.” [Docket No. 9]. Since Plaintiff did not
file any other document by March 30, 2017, the court
construes Plaintiff's “Motion of Discovery 14th
Amendment” as his amended complaint. So construed, the
court dismisses the amended complaint with leave to amend for
the following reasons.
Plaintiff's Original Complaint and the Court's Prior
original complaint, Plaintiff alleged three claims for
violations of the Eighth Amendment against Defendants arising
out of their denial of his applications for affordable
housing. See Compl. at 3-5.
court dismissed the Eighth Amendment claims without leave to
amend because Plaintiff's claims were not based on any
acts connected with the criminal process, i.e. arrest,
pre-trial detention, or incarceration after a conviction.
Order at 5-6. As explained in the court's prior order,
Eighth Amendment claims “generally do not survive
outside the criminal context.” Kaplan v. Cal. Pub.
Emps' Ret. Sys., No. C 98-1246 CRB, 1998 WL 575095,
at *7 (N.D. Cal. Sept. 3, 1998), aff'd, 221 F.3d
1348 (9th Cir. 2000); see also Ingraham, 430 U.S. at
667-68 (“In the few cases where the Court has had
occasion to confront claims that impositions outside the
criminal process constituted cruel and unusual punishment, it
has had no difficulty finding the Eighth Amendment
inapplicable.”); Belton v. Wheat, No. C
95-3311 MMC, 1996 WL 40236, at *5 (N.D. Cal. Jan. 22, 1996),
aff'd, 131 F.3d 145 (9th Cir. 1997) (dismissing
pro se plaintiff's Eighth Amendment claim because
“he does not allege that the acts he claims constituted
‘cruel and unusual punishment' occurred in
connection with criminal process--arrest, pre-trial
detention, or incarceration following conviction”).
court construed Plaintiff's original complaint as
alleging a Plaintiff's 14th Amendment equal protection
claim, and dismissed that claim with leave to amend. Order at
6-7. As explained in the court's prior order, “[t]o
state a claim under 42 U.S.C. section 1983 for a violation of
the Equal Protection Clause of the Fourteenth Amendment a
plaintiff must show that the defendants acted with an intent
or purpose to discriminate against the plaintiff based upon
membership in a protected class.” Barren v.
Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998).
“Intentional discrimination means that a defendant
acted at least in part because of a plaintiff's protected
status.” Serrano v. Francis, 345 F.3d 1071,
1082 (9th Cir. 2003) (emphasis in original) (citation and
internal quotation marks omitted). The court found that
Plaintiff failed to state a section 1983 equal protection
claim in his original complaint because he did not allege
that Defendants were state actors, or allege facts showing
that he was a member of a protected class or that Defendants
acted with an intent or purpose to discriminate against
Plaintiff based on his membership in a protected class.
Plaintiff's “Amended” Complaint
amended complaint asks this court to “recognize”
his 8th and 14th Amendment claims because he is uneducated
and cannot afford counsel. However, the amended complaint
provides no facts to support either claim.
extent that Plaintiff seeks reconsideration of the
court's prior order, the court denies the request because
Plaintiff does not present any basis for reconsideration.
See N.D. Civ. L.R. 7-9(b) (explaining the bases for
reconsideration). To the extent that Plaintiff re-alleges 8th
and 14th Amendment claims based on the facts in the original
complaint, the court dismisses both claims for the same
reasons stated in the prior order. See Order at 5-7.
conclusion, the court dismisses Plaintiffs 14th Amendment
claim, but grants a final opportunity for Plaintiff to amend
his complaint to address the deficiencies noted in this order
and the court's prior order. In his second amended
complaint, Plaintiff may not incorporate by reference any
allegations in his prior pleadings; instead, Plaintiff must
re-allege all facts upon which he bases his 14th Amendment
claim. See Minor v. Fedex Office & Print Servs.,
Inc., 182 F.Supp.3d 966, 976 (N.D. Cal. 2016)
(explaining that “as a general rule, an amended
pleading supersedes the original pleading and renders it of
no legal effect, unless the amended complaint incorporates by
reference portions of the prior pleading”) (citation
and internal quotation marks omitted).
reasons stated in this order and the court's prior order,
Plaintiffs 8th Amendment claims remain dismissed without
leave to amend. Plaintiff may not re-allege any 8th Amendment
claims in his second amended complaint.
reasons above, the court dismisses the amended complaint with
leave to amend to allege a 14th Amendment claim. By no later
than May 5, 2017, Plaintiff may file a second amended