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Bowman v. Mundey

United States District Court, E.D. California

April 19, 2017

JERRY BOWMAN, aka ABUDLLAH MUHAMMED NAYM SALAAM, Plaintiff,
v.
MUNDEY, et al., Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He filed his initial complaint on February 8, 2016. ECF No. 1. After review of that pleading, the court dismissed it as illegible. ECF No. 7 at 2. Plaintiff was afforded an opportunity to amend and he has done so. ECF No. 10. That amended complaint is before the court for screening.

         I. Screening Requirement and Standards

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b).

         A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678.

         Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         II. Screening Order

         Plaintiff's amended complaint is deficient. Crucially, the pleading does not stand on its own and, rather than explicitly articulating the alleged violations of plaintiff's rights, makes repeated references to the original, illegible complaint. ECF No. 10 at 3. It is well settled that an amended complaint entirely supersedes the original. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Further, this District's local rules state that every pleading must be “complete in itself without reference to the prior or superseded pleading, ” and “[n]o pleading shall be deemed amended or supplemented until this Rule has been complied with.” Local Rule 220. Accordingly, the amended complaint must be dismissed.

         Plaintiff will have a final opportunity to amend his complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the claims and allegations against each defendant. Any amended complaint must cure the deficiencies identified above and also adhere to the following requirements:

         Any amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation).

         It must also contain a caption including the names of all defendants. Fed.R.Civ.P. 10(a).

         Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

         Any amended complaint must be written or typed so that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, ...


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