Demos v. Holbrook

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 JOHN ROBERT DEMOS, JR., NO: 4:20-CV-5062-TOR 8 Plaintiff, v. ORDER DISMISSING ACTION 9 JULIE MARTIN, DOC Secretary; 10 DONALD HOLBROOK, State Penitentiary Superintendent; KECIA 11 RONGEN, ISRB Chairperson; and ROBERT HERZOG, DOC Director of 12 Prisoner Operations,

13 Defendants.

14 BEFORE THE COURT are Plaintiff’s Second Amended Complaint and 15 Second Application to Proceed In Forma Pauperis. ECF Nos. 37, 38. Plaintiff, a 16 prisoner at the Washington State Penitentiary (“WSP”), is proceeding pro se and in 17 forma pauperis. Defendants have not been served. 18 Plaintiff’s Second Application to Proceed In Forma Pauperis is denied as 19 moot. Plaintiff was granted in forma pauperis status on June 22, 2021. ECF No. 20 15. 1 As a general rule, an amended complaint supersedes the original complaint 2 and renders it without legal effect. Lacey v. Maricopa County, 693 F.3d 896, 927

3 (9th Cir. 2012). Therefore, “[a]ll causes of action alleged in an original complaint 4 which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 5 F.2d 565, 567 (9th Cir. 1987) (citing London v. Coopers & Lybrand, 644 F.2d 811,

6 814 (9th Cir. 1981)), overruled in part by Lacey, 693 F.3d at 928 (any claims 7 voluntarily dismissed are considered to be waived if not repled). Furthermore, 8 Defendants not named in an amended complaint are no longer defendants in the 9 action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

10 Consequently, all previously named Defendants; Jay Inslee, Governor of the 11 State of Washington, Robert Ferguson, State Attorney General, Jane Doe, DOC 12 Director of Infectious Disease Control, Jane Doe, State House of Representatives

13 Speaker of the House, John Doe, State Senate Majority Leader, George Marlton, 14 DOC Contract Attorney, John Doe, DOC WSP Correctional Officer, John Doe, WSP 15 DOC Shift Lieutenant, Lynn Clark, WSP Former Captain of the Guards, Karen 16 Forss, WSP Medical Supervisor, John Doe, DOC Chief of Medical Operations,

17 William Frank John Smith, WSP Medical Doctor, Manuel Louis Santana, WSP 18 Correctional Officer, John Doe, WSP Business Manager, John Doe, WSP Mailroom 19 Supervisor, John Doe, WSP Food Manager, Gary Pierce, WSP Disciplinary

20 1 Hearings Officer, Rochelle Stephens, WSP Legal Liaison, and Steve Sinclair, DOC 2 Secretary, have been terminated from this action.

3 Liberally construing the Second Amended Complaint in the light most 4 favorable to Plaintiff, the Court finds that it fails to cure all the deficiencies of the 5 prior complaints and does not state a claim upon which relief may be granted.

6 Plaintiff asserts that the four remaining Defendants refused to exercise their 7 supervisory powers to enforce COVID-19 protocol. ECF No. 37 at 5. He accuses 8 them of failing to strictly enforce the social distancing and mask wearing mandate. 9 Id. at 8. These allegations, combined with Plaintiff’s speculations that he may have

10 contracted various infections and his mental reservations about receiving the 11 COVID-19 vaccine, do not state a claim that Defendants Martin, Holbrook, Rongen 12 or Herzog have violated his constitutionally protected rights.

13 Plaintiff claims that he has been threatened with “retaliation” or the denial of 14 parole “should [he] refuse to submit to being vaccinated for Covid-19.” ECF No. 15 37 at 7. He does not support his claim of retaliation with any factual allegations. To 16 the extent that Plaintiff is challenging the duration of his confinement, a civil rights

17 case is not the appropriate vehicle for doing so. See Preiser v. Rodriguez, 411 U.S. 18 475, 487-90 (1973); Heck v. Humphrey, 512 U.S. 477, 481 (1994). 19 //

20 // 1 ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. Plaintiff's Second Application to Proceed In Forma Pauperis, ECF No. 38, is 3 DENIED as moot. 4 2. This action is DISMISSED without prejudice to Plaintiff filing any 5 challenge to the fact or duration of his confinement in the appropriate forum. 6 3. Under Washington v. L.A. Cty. Sheriff's Dep't, 833 F.3d 1048 (9th Cir. 2016), 7 this dismissal will NOT count as a “strike” pursuant to 28 U.S.C. § 1915(g). 8 4. Plaintiff shall file nothing further in this action other than a Notice of Appeal 9 to the Ninth Circuit Court of Appeals. 10 5. Plaintiff's in forma pauperis status is hereby REVOKED. 11 6. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this 12 Order would not be taken in good faith and would lack any arguable basis in 13 law or fact. 14 The Clerk of Court is DIRECTED to enter this Order, enter judgment, 15 || provide copies to Plaintiff and CLOSE the file. 16 DATED July 30, 2021.

18 ea BOMANO RICE rs United States District Judge 19 20