(PC) Porter v. Amezcua

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 KEVIN LAMAR PORTER, Case No. 1:23-cv-01491-JLT-BAM (PC) 7 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS REGARDING 8 v. DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS 9 AMEZCUA, et al., (ECF No. 18)

10 Defendants. ORDER CONSTRUING PLAINTIFF’S OBJECTIONS TO FINDINGS AND 11 RECOMMENDATIONS AS MOTION FOR LEAVE TO AMEND 12 (ECF No. 22)

13 ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND 14 AMENDED COMPLAINT (ECF No. 22) 15 THIRTY (30) DAY DEADLINE 16 17 Plaintiff Kevin Lamar Porter (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On May 8, 2024, the Court screened Plaintiff’s first amended complaint filed May 6, 20 2024, and found that Plaintiff stated cognizable claims against: (1) Defendant Amezcua for 21 retaliation in violation of the First Amendment and a related state law claim for violation of the 22 Bane Act; (2) Defendant Amezcua for excessive force in violation of the Eighth Amendment and 23 related state law claims for battery and violation of the Bane Act for slamming Plaintiff on the 24 ground; and (3) Defendants Amezcua, Chao, and John Does 1–5 for excessive force in violation 25 of the Eighth Amendment and related state law claims for battery and violation of the Bane Act 26 for forcefully moving Plaintiff despite his complaints of severe pain. (ECF No. 18.) The Court 27 further recommended that all other claims and defendants be dismissed based on Plaintiff’s 28 failure to state claims upon which relief may be granted. (Id.) Plaintiff was directed to file any 1 objections to the findings and recommendations within fourteen (14) days. Following an 2 extension of time, Plaintiff timely filed objections to the findings and recommendations on June 3 3, 2024. (ECF No. 22.) 4 In his objections, Plaintiff argues that his Eighth Amendment claim for deliberate 5 indifference to medical care should be allowed to proceed. (Id.) Plaintiff states that he 6 demonstrated in his first amended complaint that the defendants knew of Plaintiff’s medical 7 emergency and severe back pain due to the complaints Plaintiff made, and the requests he made 8 in his attempt to receive an examination for his medical emergency. If there is any doubt about 9 the meaning of the words Plaintiff used to explain this claim, he should have the benefit of the 10 doubt and as a pro se prisoner his pleadings should be construed liberally. Plaintiff requests that 11 his claim be allowed to proceed or he be permitted to file a second amended complaint. (Id.) 12 While Plaintiff’s complaint must be construed liberally, Plaintiff must set forth “sufficient 13 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 14 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 15 (2007)). Though detailed factual allegations are not required, “[t]hreadbare recitals of the 16 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 17 556 U.S. at 678 (citation omitted). As discussed in the findings and recommendations, Plaintiff’s 18 first amended complaint provides only conclusory statements regarding his deliberate 19 indifference to medical care claim. Further, Plaintiff was provided the applicable pleading 20 standards, (see ECF No. 16, pp. 7–8), and was unable to cure this deficiency. Accordingly, the 21 Court does not find it appropriate to allow Plaintiff’s deliberate indifference claim to proceed as 22 currently pled. 23 However, in light of Plaintiff’s pro se status and in an abundance of caution, the Court 24 finds it appropriate to vacate the pending findings and recommendations and to grant Plaintiff 25 leave to file a second amended complaint. The Court will screen the second amended complaint 26 in due course to determine whether it states a cognizable claim for relief. 27 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 28 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 1 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise 2 a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 3 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 4 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 5 “buckshot” complaints). 6 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 7 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 8 complaint must be “complete in itself without reference to the prior or superseded pleading.” 9 Local Rule 220. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The findings and recommendations issued on May 8, 2024, (ECF No. 18), are 12 VACATED; 13 2. Plaintiff’s objections to the findings and recommendations, (ECF No. 22), are 14 CONSTRUED as a motion for leave to file a second amended complaint; 15 3. Plaintiff’s motion for leave to file a second amended complaint, (ECF No. 22), is 16 GRANTED; 17 4. The Clerk’s Office shall send Plaintiff a complaint form; 18 5. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second 19 amended complaint; and 20 6. If Plaintiff fails to file a second amended complaint in compliance with this order, 21 this action will be dismissed, without prejudice, for failure to obey a court order and 22 failure to prosecute. 23 IT IS SO ORDERED. 24

25 Dated: June 6, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26

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