1 2
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 DAVID BRANDON RAMSEY, 1:19-cv-00666-DAD-GSA-PC
12 Plaintiff, ORDER FOR PLAINTIFF TO EITHER:
13 vs. (1) FILE SECOND AMENDED COMPLAINT, OR 14 C/O A. DICKERSON, et al., (2) NOTIFY THE COURT THAT HE IS 15 Defendants. WILLING TO PROCEED ONLY WITH THE EXCESSIVE FORCE 16 CLAIM AGAINST DEFENDANTS DICKERSON, JIMENEZ, BORLINA, 17 AND SANTIAGO FOUND COGNIZABLE BY THE COURT, 18 DISMISSING ALL OTHER CLAIMS
19 THIRTY-DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT OR 20 NOTIFY COURT
22 23 I. BACKGROUND 24 David Brandon Ramsey (“Plaintiff”) is a state prisoner proceeding pro se and in forma 25 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On May 10, 2019, Plaintiff 26 filed the Complaint commencing this action at the Sacramento Division of the U.S. District Court 27 for the Eastern District of California. (ECF No. 1.) On May 16, 2019, the case was transferred 28 to this court. (ECF No. 5.) 1 On July 30, 2020, the court dismissed the Complaint for failure to include a request for 2 relief in the Complaint in violation of Rule 8(a)(3) of the Federal Rules of Civil Procedure, with 3 leave to amend. (ECF No. 12.) On October 5, 2020, Plaintiff filed the First Amended Complaint, 4 which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 15.) 5 II. SCREENING REQUIREMENT 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 11 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 12 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 13 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 14 A complaint is required to contain “a short and plain statement of the claim showing that 15 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 19 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 20 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 21 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 22 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 23 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 24 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 25 plausibility standard. Id. 26 III. SUMMARY OF FIRST AMENDED COMPLAINT 27 Plaintiff is presently incarcerated at Mule Creek State Prison in Ione, California. The 28 events at issue in the First Amended Complaint allegedly took place at North Kern State Prison 1 (NKSP) in Delano, California, when Plaintiff was incarcerated there in the custody of the 2 California Department of Corrections and Rehabilitation. Plaintiff names as defendants Sergeant 3 A. Jimenez, Correctional Officer (C/O) A. Dickerson, C/O S. Borlina, C/O J. Santiago, and John 4 Does #1 and #2 (CDCR peace officer staff) (collectively, “Defendants”). 5 A summary of Plaintiff’s allegations follows: 6 On May 21, 2017, Plaintiff was seeking medical attention at NKSP TTA Clinic for a 7 seizure he suffered in the dayroom. When Plaintiff regained consciousness he asked where he 8 was and Dr. Flores [not a defendant] introduced herself. The doctor told Plaintiff she was going 9 to examine him. Because of prior abuse as a child Plaintiff took offense and instructed those in 10 the area to move away from him. When the doctor asked Plaintiff questions, he did not reply. 11 Defendant Sgt. Jimenez came into the room and said, “You’re not going to answer her 12 questions?” (ACP, ECF No. 15 at 10 ¶22.) Defendant Jimenez grabbed Plaintiff’s right hand, 13 which had a handcuff on it, and twisted his hand and fingers backwards in an unexpected and 14 highly painful fashion. 15 Fearing for his life, Plaintiff brought both of his hands to his chest and curled into a ball 16 to protect himself. Defendant Jimenez was angry and gruff. Defendants C/O Dickerson, C/O 17 Borlina, and C/O Santiago joined defendant Jimenez and flipped Plaintiff over forcefully onto 18 his stomach. When defendant Jimenez grabbed Plaintiff’s wrist and put him in a pain hold, 19 Jimenez broke Plaintiff’s pinkie finger. Defendant Jimenez used his very substantial body weight 20 and elbow to pin the slight Plaintiff down while Plaintiff was already prone on the medical 21 gurney. Continuing to twist Plaintiff’s wrist and fingers backwards, defendants Dickerson, 22 Borlina, and Santiago attempted to handcuff Plaintiff. Still dazed from the seizure Plaintiff was 23 not aware of what was happening. Everything he did was to protect himself. 24 Plaintiff began convulsing again. Defendants put him on the ground and defendant 25 Jimenez took the back of Plaintiff’s head and slammed it on the ground. Then defendants 26 Dickerson, Borlina, and Santiago dove onto Plaintiff’s back, kneeing his spinal column in an 27 effort to inflict massive pain. Defendant Jimenez told Plaintiff, “We’re not f**king playing your 28 games!” (ACP, ECF No. 15 at 11 ¶34.) Defendants picked Plaintiff up and carried him toward 1 a crisis holding cell. Plaintiff told them he could walk and placed one foot on the ground. 2 Defendant Jimenez slammed Plaintiff into the back wall of the crisis cell injuring Plaintiff’s 3 forehead. Jimenez told Plaintiff, “You better not turn around! And face the wall!” (ACP, ECF 4 No. 15 at 12 ¶38.) These instructions were unnecessary because Plaintiff was unable to turn 5 around due to Jimenez’s excessive body weight crushing him. Defendants slammed the cell door 6 shut and left. 7 During these events Defendants placed handcuffs on Plaintiff and tightened and locked 8 them so that later the cuffs were not easily removed. The handcuffs were embedded horrifically 9 into his skin causing great pain and injury. A Captain, a Lieutenant, a Sergeant and the 10 Defendants were each unsuccessful in multiple attempts to remove the embedded handcuffs from 11 Plaintiff’s wrists. The TTA medical staff ordered Defendants to transport Plaintiff to an outside 12 hospital to have medical staff medically remove the handcuffs. Defendants refused to do so. 13 Finally, the Captain was able to remove the cuffs leaving Plaintiff fearful and injured. Plaintiff 14 still bears the physical marks and scars from the handcuffs and leg shackles placed on Plaintiff 15 by Defendants. Plaintiff’s wrists and ankles were black and blue with painful sores. Several 16 times Plaintiff requested pain medication and treatment, but each time it was denied. There was 17 no penological reason to treat Plaintiff that way. 18 Defendant Dickerson put Plaintiff in a three-finger chokehold which caused Plaintiff 19 pain, bruises, abrasions to his neck area, and inability to breathe. Dickerson also aggressively 20 grabbed at Plaintiff’s overly-tightened handcuffs which caused swelling to his wrist and bruising. 21 Dickerson also body slammed Plaintiff (along with the other three defendants), causing Plaintiff 22 irreversible hearing loss in both ears, bruises, swelling, and an irreversible and painful right ear 23 drum puncture. Plaintiff also suffered marks and scars to his leg/ankle area, wrist areas, swollen 24 crooked jaw, and black eye. Plaintiff also suffered mental, emotional, and psychological injuries. 25 Plaintiff requests monetary damages, including punitive damages, attorney’s fees, and 26 costs of suit. 27 /// 28 /// 1 IV. PLAINTIFF’S CLAIMS 2 The Civil Rights Act under which this action was filed provides:
3 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 4 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 5 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 6 42 U.S.C. § 1983. 7 8 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 9 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 10 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 11 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 12 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 13 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 14 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 15 federal Constitution, Section 1983 offers no redress.” Id. 16 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 17 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 18 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 19 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 20 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 21 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 22 which he is legally required to do that causes the deprivation of which complaint is made.’” 23 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 24 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 25 established when an official sets in motion a ‘series of acts by others which the actor knows or 26 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 27 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 28 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 1 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 2 1026 (9th Cir. 2008). 3 A. Excessive Force -- Eighth Amendment Claim 4 “The objective component of an Eighth Amendment claim is . . . contextual and 5 responsive to contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) 6 (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause 7 harm always violates contemporary standards of decency, regardless of whether or not significant 8 injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth 9 Amendment excessive force standard examines de minimis uses of force, not de minimis 10 injuries)). “[W]henever prison officials stand accused of using excessive physical force in 11 violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether 12 force was applied in a good-faith effort to maintain or restore discipline, or maliciously and 13 sadistically to cause harm.” Id. at 7. “In determining whether the use of force was wanton and 14 unnecessary, it may also be proper to evaluate the need for application of force, the relationship 15 between that need and the amount of force used, the threat reasonably perceived by the 16 responsible officials, and any efforts made to temper the severity of a forceful response.” Id. 17 (internal quotation marks and citations omitted). “The absence of serious injury is . . . relevant 18 to the Eighth Amendment inquiry, but does not end it.” Id. 19 The court finds that Plaintiff states cognizable claims in the First Amended Complaint 20 against defendants Dickerson, Jimenez, Borlina, and Santiago for use of excessive force. 21 B. Retaliation 22 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 23 petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th 24 Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. 25 Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First 26 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 27 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 28 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 1 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 2 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); 3 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 4 Although Plaintiff claims that he was retaliated against, he has failed to demonstrate a 5 causal nexus between the alleged retaliation and any constitutionally protected activity showing 6 that the retaliatory act was done because of the protected activity. Accordingly, Plaintiff fails to 7 state a cognizable retaliation claim. 8 C. Americans with Disabilities Act (ADA) Claim 9 Title II of the ADA provides that “no qualified individual with a disability shall, by reason 10 of such disability, be excluded from participation in or be denied the benefits of the services, 11 programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 12 42 U.S.C. § 12132. Title II authorizes suits by private citizens for money damages against public 13 entities, United States v. Georgia, 546 U.S. 151, 153 (2006), and state prisons “fall squarely 14 within the statutory definition of ‘public entity,’” Pennsylvania Dept. of Corrs. v. Yeskey, 524 15 U.S. 206, 210 (1998). 16 In order to state a claim that a public program or service violated Title II of the ADA, a 17 plaintiff must show: (1) he is a “qualified individual with a disability;” (2) he was either excluded 18 from participation in or denied the benefits of a public entity’s services, programs, or activities, 19 or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of 20 benefits, or discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 21 1259, 1265 (9th Cir. 2004); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 22 2001) (“If a public entity denies an otherwise ‘qualified individual’ ‘meaningful access’ to its 23 ‘services, programs, or activities’ ‘solely by reason of’ his or her disability, that individual may 24 have an ADA claim against the public entity.”). The ADA, as amended in 2008, defines a 25 disability, with respect to an individual, as “a physical or mental impairment that substantially 26 limits one or more major life activities of such an individual.” Id. (quoting 42 U.S.C. § 27 12102(1)(A)). 28 /// 1 Plaintiff claims that Defendants violated the ADA by discriminating “against the mentally 2 ill/impaired.” (ECF No. 15 at 7 ¶4.) However, Plaintiff fails to allege facts showing that he was 3 excluded from participation in or denied the benefits of the prison’s services, programs or 4 activities, or was otherwise discriminated against by the prison, or that such exclusion, denial of 5 benefits, or discrimination was by reason of Plaintiff's disability. Therefore, Plaintiff fails to 6 state a claim for violation of the ADA. 7 D. Eighth Amendment Medical Claim 8 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 9 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 10 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 11 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 12 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 13 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 14 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 15 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 16 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 17 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 18 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 19 may be manifested “when prison officials deny, delay or intentionally interfere with medical 20 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 21 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to 22 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical 23 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 24 407 (9th Cir. 1985)). 25 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 26 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 27 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 28 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 1 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the 2 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting 3 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of 4 medical malpractice or negligence is insufficient to establish a constitutional deprivation under 5 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a 6 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 7 “A difference of opinion between a prisoner-patient and prison medical authorities 8 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 9 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course 10 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . 11 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” 12 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 13 Plaintiff alleges that he requested pain medication and treatment for his injuries several 14 times but his requests were denied. He also alleges that Defendants applied his handcuffs too 15 tight and that TTA staff asked Defendants to take Plaintiff to an outside hospital to have his 16 handcuffs removed, but Defendants refused. However, Plaintiff has not named the defendant or 17 defendants who denied his requests for treatment, or denied TTA staff’s request for Plaintiff to 18 be taken to an outside hospital. Plaintiff refers to “Defendants” throughout the Complaint and 19 alleges that “Defendants” collectively delayed or denied Plaintiff’s medical care and pain 20 medications. Plaintiff cannot state a claim against a Defendant(s) unless he demonstrates in his 21 allegations that each individual Defendant, identified by name, personally acted or failed to act, 22 violating Plaintiff’s rights. Plaintiff may not attribute liability to a group of defendants but must 23 “set forth specific facts as to each individual defendant’s” deprivation of his rights. Leer v. 24 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor v. List, 880 F.2d 1040, 1045 (9th 25 Cir. 1989). 26 Therefore, Plaintiff fails to state a medical claim. Plaintiff shall be granted leave to amend 27 this claim to correct the deficiencies in this claim found by the court. 28 /// 1 /// 2 E. Doe Defendants 3 Plaintiff has not alleged any conduct by the Doe Defendants that violated Plaintiff’s rights 4 under the United States Constitution or any other federal law. Therefore, Plaintiff fails to state a 5 claim against either of the Doe Defendants. 6 Moreover, Plaintiff is advised that unidentified, or “John Doe” defendants must be named 7 or otherwise identified before service can go forward. “As a general rule, the use of ‘John Doe’ 8 to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 9 John Doe or Jane Doe defendants cannot be served until Plaintiff has identified them as actual 10 individuals and amended his complaint to substitute names for John Doe or Jane Doe. For service 11 to be successful, the Marshal must be able to identify and locate defendants. 12 F. State Law Claims 13 “California’s Government Claims Act requires that a tort claim against a [state] public 14 entity or its employees for money or damages be presented to the [Department of General 15 Services] 1 no more than six months after the cause of action accrues.” Lopez v. Cate, No. 1:10- 16 cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code §§ 905.2, 17 910, 911.2, 945.4, 950-950.2). “Timely claim presentation is not merely a procedural 18 requirement, but is . . . a condition precedent to plaintiff’s maintaining an action against defendant 19 and thus an element of the plaintiff’s cause of action.” Id. (internal quotation marks and citations 20 omitted). The “obligation to comply with the Government Claims Act” is independent of the 21 obligation to exhaust administrative remedies pursuant to the Prison Litigation Reform 22 Act. McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2 (E.D. Cal. 23 Sept. 3, 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL 24 111748 (E.D. Cal. Jan. 12, 2021) (citing McPherson v. Alamo, No. 3:15-cv-03145-EMC, 2016 25 26 27 1 The Department of General Services was formerly the Victim Compensation and Government Claims Board. McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2 28 (E.D. Cal. Sept. 3, 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL 111748 (E.D. Cal. Jan. 12, 2021). 1 WL 7157634, at *6 (N.D. Cal. 2016) (citing Parthemore v. Col, 221 Cal. App. 4th 1372, 1376 2 (2013)). 3 Plaintiff states that he filed a claim with the state agency known as the Office of Risk and 4 Insurance Management, Department of General Services in West Sacramento, California, claim 5 number 18000409, and the claim was denied. This statement by itself is a mere legal conclusion 6 and is insufficient to show compliance. See Cardenas v. Cty. of Tehama, No. 7 218CV03021TLNDMC, 2020 WL 4475188, at *10 (E.D. Cal. Aug. 4, 2020). Plaintiff has not 8 provided the claim as an attachment to the First Amended Complaint, nor has he indicated when 9 he filed the claim or what specific facts and causes of action were referred to in the claim. See 10 id. Without such information Plaintiff has not sufficiently pleaded facts demonstrating he 11 complied with the California Government Claims Act in bringing his state law claim. Id. 12 Therefore, Plaintiff’s state law claims fail. If Plaintiff chooses to file a Second Amended 13 Complaint he should attach a copy of the claim he submitted to the Department of General 14 Services and the rejection letter he received back, or otherwise provide more information 15 demonstrating that he met the requirements of the Government Claims Act. 16 G. Relief Requested 17 In addition to money damages, Plaintiff seeks attorney’s fees and costs of suit. “In any 18 action or proceeding to enforce a provision of section[] 1983. . . , the court, in its discretion, may 19 allow the prevailing party. . . reasonable attorney’s fees. . . .” 42 U.S.C. § 1988(b). However, 20 Plaintiff’s contention that he is entitled to attorney’s fees if he prevails is without merit. Plaintiff 21 is representing himself in this action. Because Plaintiff is not represented by an attorney, he is 22 not entitled to recover attorney’s fees if he prevails. See Friedman v. Arizona, 912 F.2d 328, 23 333 n.2 (9th Cir. 1990), superseded by statute as stated in Warsoldier v. Woodford, 418 F.3d 989 24 (9th Cir. 2005); Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); see also Rickley v. 25 Cnty. of Los Angeles, 654 F.3d 950, 954 (9th Cir. 2011) (“The Court accordingly adopted a per 26 se rule, categorically precluding an award of attorney’s fees under § 1988 to a pro se attorney- 27 plaintiff.”) Therefore, Plaintiff is not entitled to attorney’s fees if he prevails in this action. 28 V. CONCLUSION 1 The court finds that Plaintiff’s First Amended Complaint states cognizable claims against 2 defendants Sergeant A. Jimenez, C/O A. Dickerson, C/O S. Borlina, and C/O J. Santiago for use 3 of excessive force, but no other claims against any of the Defendants. Plaintiff shall be required 4 to either file a Second Amended Complaint or notify the court that he is willing to proceed only 5 with the excessive force claim. 6 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 7 leave to amend when justice so requires.” Plaintiff shall be required to either file an amended 8 complaint or notify the court of his willingness to proceed only on the cognizable excessive force 9 claims against defendants Jimenez, Dickerson, Borlina, and Santiago. Should Plaintiff choose 10 to proceed only on the cognizable excessive force claims, the court shall initiate service upon 11 defendants Jimenez, Dickerson, Borlina, and Santiago. 12 Plaintiff is granted leave to file an amended complaint within thirty days. Noll v. Carlson, 13 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff chooses to amend the complaint, the 14 amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named 15 defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights, Iqbal, 16 556 U.S. at 678; Jones v. Williams, 297 F.3d. 930, 934 (9th Cir. 2002.). Plaintiff must set forth 17 “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 (quoting 18 Twombly, 550 U.S. at 555). There is no respondeat superior liability, and each defendant is only 19 liable for his or her own misconduct. Iqbal, 556 U.S. at 677. Plaintiff must demonstrate that 20 each defendant personally participated in the deprivation of his rights. Jones, 297 F.3d at 934 21 (emphasis added). Plaintiff should note that although he has been given the opportunity to amend 22 it is not for the purpose of adding new defendants for unrelated issues. Plaintiff should also note 23 that he has not been granted leave to add allegations of events occurring after the initiation of 24 this suit on May 10, 2019. 25 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 26 v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012), and it must be complete in itself 27 without reference to the prior or superceded pleading. Local Rule 220. Once an amended 28 complaint is filed, the original complaint no longer serves any function in the case. Therefore, 1 in an amended complaint, as in an original complaint, each claim and the involvement of each 2 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 3 titled “Second Amended Complaint,” refer to the appropriate case number, and be an original 4 signed under penalty of perjury. 5 Therefore, IT IS HEREBY ORDERED that: 6 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 7 2. Within thirty days from the date of service of this order, Plaintiff is required to 8 either: 9 (1) file a Second Amended Complaint curing the deficiencies in his claims 10 found by the court, or 11 (2) notify the court that he is willing to proceed in this case only with his 12 excessive force claim against defendants Sergeant A. Jimenez, C/O A. 13 Dickerson, C/O S. Borlina, and C/O J. Santiago found cognizable by the 14 court, dismissing all other claims; 15 3. If Plaintiff chooses to amend the complaint, he shall caption the amended 16 complaint “Second Amended Complaint” and refer to the case number 1:19-cv- 17 00666-DAD-GSA-PC; and 18 4. Plaintiff’s failure to comply with this order may result in a recommendation that 19 this case be dismissed in its entirety. 20 IT IS SO ORDERED. 21
22 Dated: February 9, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23
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