Maggay v. Micke

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 RODERICK MAGGAY, 11 Case No. 21-cv-04994 BLF (PR) Plaintiff, 12 ORDER ADDRESSING v. PLAINTIFF’S MOTION OF 13 CLARIFICATION; GRANTING LEAVE TO FILE SECOND 14 OFFICER MICKE, et al., AMENDED COMPLAINT; STAYING BRIEFING 15 Defendants.

16 (Docket No. 24)

17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against several officers at the Santa Rita County Jail (“Jail”). Dkt. No. 1. 20 The Court dismissed the complaint with leave to amend for Plaintiff to correct several 21 deficiencies. Dkt. No. 11. Plaintiff filed an amended complaint, Dkt. No. 13, which the 22 Court found stated cognizable claims against Defendants Micke and Perry. Dkt. No. 14. 23 The Court ordered Defendants to be served and for them to file a dispositive motion or 24 notice regarding such motion. Id. Currently, only Officer Micke has appeared. Dkt. No. 25 21, and Defendant Perry has not. Dkt. No. 18. 26 Plaintiff has recently filed a “motion of clarification” regarding the allegations in 27 his amended complaint. Dkt. No. 24. In the motion, Plaintiff states that it was Deputy 1 Id. at 1. The Court notes that Plaintiff’s amended complaint clearly indicated “Officer 2 Perry” throughout. See Dkt. No. 13 at 2. The Court will construe Plaintiff’s motion as 3 seeking leave to amend and will grant it for good cause shown. Plaintiff must file a second 4 amended complaint that identifies Defendant Perez as the appropriate party and includes 5 the appropriate allegations. 6 The Court advised Plaintiff that he may move to add unidentified Defendants who 7 were also present and allegedly failed to intervene during Defendant Micke’s use of 8 excessive force if Plaintiff is able to obtain their identifies through discovery. Dkt. No. 14 9 at 4, 5, citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In his recent 10 motion, Plaintiff identifies the following new Defendants: Nurse R. Hallera, Officer Han, 11 Officer Cummings, Officer Watson, Sgt. Smitherman, Tech E. Frogier, and Tech J. 12 Newkirk. Dkt. No. 24 at 5. However, simply providing names are not enough. Plaintiff 13 must describe each individual’s actions that resulted in the violation of his rights in 14 connection with the underlying incident of this suit. Accordingly, Plaintiff should include 15 these newly identified Defendants in his second amended complaint and include sufficient 16 factual allegations to show that each of these Defendants are liable under § 1983. 17 In preparing a second amended complaint, Plaintiff must keep the following legal 18 principles in mind. Liability may be imposed on an individual defendant under 42 U.S.C. 19 § 1983 if the plaintiff can show that the defendant’s actions both actually and proximately 20 caused the deprivation of a federally protected right. Lemire v. Cal. Dept. of Corrections 21 & Rehabilitation, 726 F.3d 1062, 1085 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 22 (9th Cir. 1988). A person deprives another of a constitutional right within the meaning of 23 section 1983 if he does an affirmative act, participates in another's affirmative act or omits 24 to perform an act which he is legally required to do, that causes the deprivation of which 25 the plaintiff complains. See Leer, 844 F.2d at 633. 26 /// 1 CONCLUSION 2 For the reasons state above, the Court orders as follows: 3 1. Plaintiff is granted leave to file a second amended complaint to include the 4 || information described above no later than twenty-eight (28) days of the date this order is 5 || filed. The second amended complaint must include the caption and civil case number used 6 || in this order, Case No. C 21-cv-04494 BLF (PR), and the words “SECOND AMENDED 7 || COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer 8 || all the questions on the form in order for the action to proceed. The second amended 9 || complaint supersedes the original and the amended complaints, which will be treated 10 thereafter as non-existent. Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th 11 || Cir. 2015). Consequently, claims not included in the second amended complaint are no 2 longer claims and defendants not named in the second amended complaint are no longer 5 13 defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). S 14 2. Failure to respond in accordance with this order in the time provided will 3 15 || result in this action proceeding based on the cognizable claims in the amended complaint, A 16 || as discussed in the court’s initial screening order. Dkt. No. 14. 3 17 3. In light of this order, the deadline for Defendant Micke’s dispositive motion 18 || is STAYED. The Court will set a new briefing schedule as is appropriate. 19 This order terminates Docket No. 24. 20 IT ISSO ORDERED. 21 || Dated: _ July 14,2022, hod Hoy booms! BETH LAB SON FREEMAN United States District Judge 23 24 25 Order granting LTA; Staying Briefing PRO-SE\BLF\CR.21\04994Maggay_amend.compl 26 27