1 2 3 4 5 6 7 10 11 ROBERT EPPS, No. 2:23-cv-00135-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 ARCHIE, et al., 15 Defendants. 16 17 Plaintiff is confined in Atascadero State Hospital and proceeds without counsel in an 18 action brought under 42 U.S.C. § 1983 concerning events that occurred while he was incarcerated 19 at California State Prison, Sacramento. He has paid the filing fee. Since April 1, 2024, plaintiff 20 has filed five amended complaints, sometimes accompanied by a motion seeking leave to amend 21 his complaint. ECF Nos. 43, 46, 53, 56, 57, 59. Also pending are defendant’s requests that the 22 court screen plaintiff’s amended complaint and revise the schedule. ECF Nos. 47, 50, 55. 23 Plaintiff also seeks modification of the schedule to permit him to conduct further discovery. ECF 24 No. 51. 25 I. Motions to Amend 26 Federal Rule of Civil Procedure 15 allows a party to amend a pleading only with the 27 opposing party’s consent or the leave of court where, as here, more than 21 days have elapsed 28 after the service of a responsive pleading. Fed. R. Civ. P. 15(b). “The court should freely give 1 leave when justice so requires.” Id. The court may deny leave to amend, however, where such 2 amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Defendant filed a 3 statement of non-opposition to plaintiff’s motion to amend the operative second amended 4 complaint, but has not filed a response to plaintiff’s most recent amendments, filed on September 5 12, 2024 and September 20, 2024. ECF No. 45. 6 Plaintiff’s most recent amended complaint (ECF No. 59), which is his sixth amended 7 complaint, does not appreciably change the allegations of the second amended complaint, except 8 for its addition of a Doe defendant who was allegedly involved in the incident that forms the basis 9 of this lawsuit (an alleged failure to protect plaintiff from his cellmate). The court will therefore 10 grant plaintiff’s most recent motion to amend (ECF No. 56) and accept the sixth amended 11 complaint as the operative pleading in this matter. As the sixth amended complaint supersedes all 12 previously-filed complaints, plaintiff’s previous motion to amend (ECF No. 43), defendant’s 13 request that the court screen the third amended complaint (ECF No. 47, 50), and plaintiff’s 14 motion to strike the fifth amended complaint filed at ECF No. 53 (ECF No. 54) are denied as 15 moot. 16 The sixth amended complaint is screened in Section III, below. 17 II. Motions to Modify the Schedule 18 Federal Rule of Civil Procedure 16(b)(4) provides: “A schedule may be modified only for 19 good cause and with the judge’s consent.” Courts considering a request to modify a schedule 20 under Rule 16(b)(4) look primarily to the whether the party seeking modification could not 21 reasonably meet the deadline despite his diligence. Johnson v. Mammoth Recreations, 975 F.2d 22 604, 609 (9th Cir. 1992). While the focus is primarily on the moving party’s diligence, “the 23 existence or degree of prejudice to the party opposing the motion might supply additional reasons 24 to deny” the requested modification. Id. 25 Defendant seeks clarification of the schedule following plaintiff’s many attempts to 26 amend the complaint. ECF No. 55. Plaintiff seeks additional time to conduct discovery. ECF 27 No. 51. As the court accepts plaintiff’s most-recent amended complaint (see below), the court 28 will grant these requests, vacate the current schedule, and issue a new scheduling order once the 1 court has received defendant’s answer to the sixth amended complaint (or to the seventh amended 2 complaint, should plaintiff seek to remedy the defects identified in the sixth amended complaint, 3 below). 4 III. Screening of the Most Recent Amended Complaint (ECF No. 59) 5 Federal courts must engage in a preliminary screening of cases in which prisoners seek 6 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any 8 portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon 9 which relief may be granted,” or “seeks monetary relief from a defendant who is immune from 10 such relief.” Id. § 1915A(b). 11 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 12 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 13 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 14 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 15 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 16 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 17 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 18 U.S. 662, 679 (2009). 19 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 20 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 21 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 22 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 23 678. 24 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 25 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 26 content that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 28 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 1 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 2 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 3 In his sixth amended complaint, plaintiff sues Correctional Officer Archie, who has 4 already been served and appeared, and a Doe defendant who was employed as a Lieutenant at 5 CSP-Sac at the relevant time. ECF No. 59. Plaintiff alleges:
6 On 10-15-21 when I went to get my medication standing by the med cart was C/O Archie and a med nurse. I informed Archie that my cell-mate Clifford Wingo had 7 stopped taking his medication and was acting like he was going to hit [me] because of my commitment offense. Archie stated he could move me into cell 8 127 with a transgender but changed his mind and walked me down to the sally- port. While there a staff escort and the Lieutenant came to talk to me and I let 9 them know that I was scared to go back in the cell with Wingo. So they let me look for another cell-mate and I found one.
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1 2 3 4 5 6 7 10 11 ROBERT EPPS, No. 2:23-cv-00135-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 ARCHIE, et al., 15 Defendants. 16 17 Plaintiff is confined in Atascadero State Hospital and proceeds without counsel in an 18 action brought under 42 U.S.C. § 1983 concerning events that occurred while he was incarcerated 19 at California State Prison, Sacramento. He has paid the filing fee. Since April 1, 2024, plaintiff 20 has filed five amended complaints, sometimes accompanied by a motion seeking leave to amend 21 his complaint. ECF Nos. 43, 46, 53, 56, 57, 59. Also pending are defendant’s requests that the 22 court screen plaintiff’s amended complaint and revise the schedule. ECF Nos. 47, 50, 55. 23 Plaintiff also seeks modification of the schedule to permit him to conduct further discovery. ECF 24 No. 51. 25 I. Motions to Amend 26 Federal Rule of Civil Procedure 15 allows a party to amend a pleading only with the 27 opposing party’s consent or the leave of court where, as here, more than 21 days have elapsed 28 after the service of a responsive pleading. Fed. R. Civ. P. 15(b). “The court should freely give 1 leave when justice so requires.” Id. The court may deny leave to amend, however, where such 2 amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Defendant filed a 3 statement of non-opposition to plaintiff’s motion to amend the operative second amended 4 complaint, but has not filed a response to plaintiff’s most recent amendments, filed on September 5 12, 2024 and September 20, 2024. ECF No. 45. 6 Plaintiff’s most recent amended complaint (ECF No. 59), which is his sixth amended 7 complaint, does not appreciably change the allegations of the second amended complaint, except 8 for its addition of a Doe defendant who was allegedly involved in the incident that forms the basis 9 of this lawsuit (an alleged failure to protect plaintiff from his cellmate). The court will therefore 10 grant plaintiff’s most recent motion to amend (ECF No. 56) and accept the sixth amended 11 complaint as the operative pleading in this matter. As the sixth amended complaint supersedes all 12 previously-filed complaints, plaintiff’s previous motion to amend (ECF No. 43), defendant’s 13 request that the court screen the third amended complaint (ECF No. 47, 50), and plaintiff’s 14 motion to strike the fifth amended complaint filed at ECF No. 53 (ECF No. 54) are denied as 15 moot. 16 The sixth amended complaint is screened in Section III, below. 17 II. Motions to Modify the Schedule 18 Federal Rule of Civil Procedure 16(b)(4) provides: “A schedule may be modified only for 19 good cause and with the judge’s consent.” Courts considering a request to modify a schedule 20 under Rule 16(b)(4) look primarily to the whether the party seeking modification could not 21 reasonably meet the deadline despite his diligence. Johnson v. Mammoth Recreations, 975 F.2d 22 604, 609 (9th Cir. 1992). While the focus is primarily on the moving party’s diligence, “the 23 existence or degree of prejudice to the party opposing the motion might supply additional reasons 24 to deny” the requested modification. Id. 25 Defendant seeks clarification of the schedule following plaintiff’s many attempts to 26 amend the complaint. ECF No. 55. Plaintiff seeks additional time to conduct discovery. ECF 27 No. 51. As the court accepts plaintiff’s most-recent amended complaint (see below), the court 28 will grant these requests, vacate the current schedule, and issue a new scheduling order once the 1 court has received defendant’s answer to the sixth amended complaint (or to the seventh amended 2 complaint, should plaintiff seek to remedy the defects identified in the sixth amended complaint, 3 below). 4 III. Screening of the Most Recent Amended Complaint (ECF No. 59) 5 Federal courts must engage in a preliminary screening of cases in which prisoners seek 6 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any 8 portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon 9 which relief may be granted,” or “seeks monetary relief from a defendant who is immune from 10 such relief.” Id. § 1915A(b). 11 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 12 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 13 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 14 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 15 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 16 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 17 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 18 U.S. 662, 679 (2009). 19 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 20 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 21 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 22 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 23 678. 24 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 25 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 26 content that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 28 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 1 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 2 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 3 In his sixth amended complaint, plaintiff sues Correctional Officer Archie, who has 4 already been served and appeared, and a Doe defendant who was employed as a Lieutenant at 5 CSP-Sac at the relevant time. ECF No. 59. Plaintiff alleges:
6 On 10-15-21 when I went to get my medication standing by the med cart was C/O Archie and a med nurse. I informed Archie that my cell-mate Clifford Wingo had 7 stopped taking his medication and was acting like he was going to hit [me] because of my commitment offense. Archie stated he could move me into cell 8 127 with a transgender but changed his mind and walked me down to the sally- port. While there a staff escort and the Lieutenant came to talk to me and I let 9 them know that I was scared to go back in the cell with Wingo. So they let me look for another cell-mate and I found one. I was told a move would be made but 10 I had to go back in the cell with Wingo. Archie had Wingo pack up all of his property and told us to wait. Wingo was suppose[d] to go to one block while the 11 cell-mate I found was suppose[d] to move in with me. We waited for a few hours and 3rd watch came in and acknowledge[d] that a move was suppose[d] to be 12 made but Archie canceled it. The weekend came and when I saw Archie again I asked him would the move still be made and he said no which seemed very 13 frivolous and malicious. On 10-17-21 I was attacked by Wingo and I woke up the next day at U.C. Davis Medical Center. Wingo was charged with attempted 14 murder. 15 Id. at 3, 5. These allegations continue to state a potentially cognizable Eighth Amendment claim 16 against defendant Archie, but they do not state a cognizable claim against the Doe defendant 17 Lieutenant. Plaintiff has not alleged any facts showing that the Doe defendant was deliberately 18 indifferent to the risk of harm posed by Wingo; instead, the allegations are that the Doe defendant 19 assisted plaintiff in finding a new cellmate. Plaintiff does not allege that the Doe defendant was 20 involved in canceling the move or otherwise acted or failed to act in a manner showing deliberate 21 indifference to the risk posed by plaintiff’s cohabitation with Wingo. 22 Thus, plaintiff’s claim against the Doe defendant must be dismissed. The court will grant 23 plaintiff one further opportunity to amend the complaint, should plaintiff wish to attempt to cure 24 the deficiencies in his claim against the Doe defendant. Plaintiff is not obligated to amend the 25 sixth amended complaint; if plaintiff does not file an amended complaint within the time provided 26 below, the case will proceed on plaintiff’s claim against defendant Archie. 27 If plaintiff chooses to file an amended complaint it should observe the following: 28 Any amended complaint must identify as a defendant only persons who personally 1 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 2 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 3 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 4 legally required to do that causes the alleged deprivation). The complaint should also describe, 5 in sufficient detail, how each defendant personally violated or participated in the violation of his 6 rights. The court will not infer the existence of allegations that have not been explicitly set forth 7 in the amended complaint. 8 The amended complaint must contain a caption including the names of all defendants. 9 Fed. R. Civ. P. 10(a). 10 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 11 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 12 Any amended complaint must be written or typed so that it so that it is complete in itself 13 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 14 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 15 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 16 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being 17 treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). 18 IV. Summary of Order 19 For the foregoing reasons, it is hereby ORDERED that: 20 G.Plaintiff’s September 12, 2024 motion to amend (ECF No. 56) is GRANTED, and the case shall 21 proceed on plaintiff’s sixth amended complaint (ECF No. 59), which supersedes all previously- 22 filed complaints. 23 H.The motions appearing at ECF No. 43, 47, 50 and 54 are DENIED AS MOOT. 24 I.Plaintiff shall have 30 days from the date of this order to file an amended complaint to attempt 25 to state a cognizable claim against the Doe defendant (lieutenant). Plaintiff is not obligated to 26 amend the complaint. 27 J.The parties’ requests to modify the schedule are GRANTED (ECF Nos. 51, 55). The 28 1 existing schedule (ECF No. 38) is VACATED. Should plaintiff fail to file a seventh 2 amended complaint by the deadline provided by this order, defendant shall respond to the 3 sixth amended complaint (whether by answer or motion) within 21 days thereafter. The 4 court will issue a new scheduling order upon the filing of defendant’s answer. ° roe SAF? g 6 | Dated: October 21, 2024 Lig Ad htc? oe Zu . Sin □□ 1 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28