Rudy Jaquez v. County of San Bernardino

• Court: District Court, C.D. California
• Decided: October 6, 2021
• Docket: 5:21-cv-00756
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 RUDY JAQUEZ, ) No. ED CV 21-756-JWH (PLA) ) 13 Plaintiff, ) ) ORDER DISMISSING FIRST AMENDED 14 v. ) COMPLAINT WITH LEAVE TO AMEND ) 15 COUNTY OF SAN BERNARDINO, et al., ) ) 16 Defendants. ) ) 17 18 Plaintiff, who appears to be a detainee being held at the West Valley Detention Center 19 (“WVDC”) in Rancho Cucamonga, California, filed a pro se civil rights action pursuant to 42 U.S.C. 20 § 1983 on April 23, 2021. (ECF No. 1). Plaintiff subsequently was granted leave to proceed 21 without prepayment of the filing fees. (ECF Nos. 8-9). Plaintiff’s Complaint named as defendants 22 the County of San Bernardino and Deputy Sheriff Munoz in his official and individual capacities. 23 (ECF No. 1 at 1, 3). Plaintiff appeared to be raising one claim arising from an incident on October 24 11, 2020, when Deputy Munoz “grabbed” plaintiff while plaintiff was handcuffed, “pulled [plaintiff] 25 to the ground,” and “punched [plaintiff] at least once in [his] face.” (Id. at 3, 5). Plaintiff sought 26 monetary compensation and to have Deputy Munoz “fired.” (Id. at 6). 27 In accordance with the mandate of the Prison Litigation Reform Act of 1995 (“PLRA”), the 28 1 state a claim upon which relief may be granted; or seeks monetary relief against a defendant who 2 is immune from such relief. See 28 U.S.C. §§ 1915A, 1915(e)(2); 42 U.S.C. § 1997e(c). After 3 careful review of the Complaint, the Court found that plaintiff’s allegations failed to state a short 4 and plain statement of any claim and appeared insufficient to state a federal civil rights claim 5 against any defendant. Accordingly, the Complaint was dismissed with leave to amend. Plaintiff 6 was ordered, if he desired to pursue this action, to file a First Amended Complaint no later than 7 July 22, 2021, remedying the deficiencies discussed in the Court’s Order Dismissing Complaint 8 with Leave to Amend. (ECF No. 10; “First Order Dismissing”). Further, plaintiff was admonished 9 that, if he failed to timely file a First Amended Complaint or failed to remedy the deficiencies of this 10 pleading, then the Court would recommend that the action be dismissed without further leave to 11 amend and with prejudice. (Id. at 3, 10). 12 On July 19, 2021, plaintiff filed a First Amended Complaint (ECF No. 11), but he failed to 13 sign and date the pleading. Plaintiff was ordered to submit a signed and dated pleading. (ECF 14 No. 12). On August 6, 2021, plaintiff filed a revised version of his First Amended Complaint. (ECF 15 No. 15; “FAC”). In the FAC, plaintiff names only Deputy Sheriff Munoz as a defendant, but plaintiff 16 again names the deputy in his official and individual capacities. (Id. at 3). Plaintiff purports to 17 raise one claim in the FAC, but within this claim, plaintiff references his “right to be free from cruel 18 and unusual punishment,” battery, and his “right to be treated equally.” (Id. at 5). In the FAC, 19 plaintiff seeks damages and to have Deputy Munoz “fired from working as a deputy sheriff.” (Id. 20 at 6). 21 The Court has now screened the FAC to determine whether the action is frivolous or 22 malicious; or fails to state a claim upon which relief may be granted; or seeks monetary relief 23 against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A, 1915(e)(2); 42 24 U.S.C. § 1997e(c). The Court’s screening of the pleading under the foregoing statutes is governed 25 by the following standards. A complaint may be dismissed as a matter of law for failure to state 26 a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts alleged under 27 a cognizable legal theory. See, e.g., Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 28 2017); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“In determining whether 1 a complaint should be dismissed for failure to state a claim under the [PLRA], we apply the familiar 2 standard of Fed. R. Civ. P. 12(b)(6).”). Further, with respect to a plaintiff’s pleading burden, the 3 Supreme Court has held that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] 4 to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of 5 a cause of action will not do. … Factual allegations must be enough to raise a right to relief above 6 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 7 L. Ed. 2d 929 (2007) (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 8 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (To avoid dismissal for failure to 9 state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 10 to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual 11 content that allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” (internal citation omitted)). 13 Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading 14 liberally and must afford plaintiff the benefit of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 15 (9th Cir. 2010). Further, it is particularly important in a civil rights case filed by a pro se litigant to 16 attempt to ascertain plaintiff’s claims to protect his or her access to the courts. See Blaisdell v. 17 Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Pouncil v. Tilton, 704 F.3d 568, 574-75 (9th Cir. 18 2012) (the rule of liberal construction “protects the rights of pro se litigants to self-representation 19 and meaningful access to the courts”). In addition, the Court may not dismiss a claim because 20 a pro se litigant has set forth an incomplete “legal theory supporting the claim” alleged. See 21 Johnson v. City of Shelby, 574 U.S. 10, 11, 135 S. Ct. 346, 190 L. Ed. 2d 309 (2014). Finally, in 22 determining whether a complaint states a claim to relief that is plausible on its face, factual 23 allegations are accepted as true and construed in the light most favorable to plaintiff. See, e.g., 24 Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that a court must 25 accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” 26 Iqbal, 556 U.S. at 678; see also Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“a 27 court discounts conclusory statements, which are not entitled to the presumption of truth, before 28 determining whether a claim is plausible”). Nor is the Court “bound to accept as true a legal 1 conclusion couched as a factual allegation or an unadorned, the-defendant-unlawfully-harmed-me 2 accusation.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (internal quotation marks and 3 citations omitted). 4 After careful review of the FAC under the foregoing standards, the Court finds that plaintiff’s 5 allegations once again fail to state a short and plain statement of any claim and appear insufficient 6 to state a federal civil rights claim against the defendant. Accordingly, the FAC is dismissed with 7 leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (a “pro se litigant must 8 be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of 9 the complaint cannot be cured by amendment” (internal quotation marks omitted)). 10 If plaintiff desires to pursue this action, he is ORDERED to file a Second Amended 11 Complaint no later than November 4, 2021, remedying the deficiencies discussed below. 12 Further, plaintiff is admonished that, if he fails to timely file a Second Amended Complaint 13 or fails to remedy the deficiencies of this pleading, then the Court will recommend that the 14 action be dismissed without further leave to amend and with prejudice.1 15 16 A. FEDERAL RULE OF CIVIL PROCEDURE 8 (“RULE 8”) 17 Plaintiff’s FAC fails to comply with Rule 8(a) and Rule 8(d). Rule 8(a) states: 18 A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction 19 and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for 20 the relief sought, which may include relief in the alternative or different types of relief. 21 22 23 1 Plaintiff is advised that this Court’s determination herein that the allegations in the First Amended Complaint are insufficient to state a particular claim should not be seen as dispositive 24 of that claim. Accordingly, while this Court believes that you have failed to plead sufficient factual matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you 25 are not required to omit any claim or defendant in order to pursue this action. However, if you 26 decide to pursue a claim in a Second Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit 27 to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as 28 1 Fed. Rule Civ. P. 8(a) (emphasis added). Additionally, Rule 8(d)(1) provides: “Each allegation 2 must be simple, concise, and direct. No technical form is required.” (Emphasis added). 3 Although the Court must construe a pro se plaintiff’s pleadings liberally, a plaintiff nonetheless 4 must allege a minimum factual and legal basis for each claim that is sufficient to give each 5 defendant fair notice of what plaintiff’s claims are and the grounds upon which they rest. See, 6 e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 7 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants “fair notice of the claims against 8 them”). If a plaintiff fails to clearly and concisely set forth factual allegations sufficient to provide 9 defendants with notice of which defendant is being sued on which theory and what relief is being 10 sought against them, the complaint fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 11 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 12 1981). A claim has “substantive plausibility” if a plaintiff alleges “simply, concisely, and directly 13 [the] events” that entitle him to damages. Johnson, 574 U.S. at 12. Moreover, failure to comply 14 with Rule 8 constitutes an independent basis for dismissal of a complaint that applies even if the 15 claims in a complaint are not found to be wholly without merit. See McHenry, 84 F.3d at 1179. 16 First, it remains unclear what or how many civil rights claims plaintiff is attempting to allege 17 in this action. The FAC indicates that plaintiff is raising one claim, and plaintiff alleges that the 18 defendant violated his “right to be free from cruel and unusual punishment by committing battery.” 19 (ECF No. 15 at 5). Within this same claim, however, plaintiff additionally alleges that Deputy 20 Munoz violated plaintiff’s “right to be treated equally.” (Id.). Plaintiff also alleges that unidentified 21 individuals “roughly” cuffed plaintiff “to the rear,” yanked plaintiff to his feet, and “roughly escorted” 22 plaintiff “back to [his] housing unit.” Plaintiff also alleges that he suffered difficulty breathing 23 because he “was in so much fear.” (Id.). It is not clear if Deputy Munoz is alleged to have taken 24 all of these actions, if plaintiff is purporting to raise any claim against any official arising from the 25 rough treatment, or if plaintiff is purporting to raise a claim arising from any medical issues. Nor 26 does the FAC set forth any facts supporting plaintiff’s allegation that Deputy Munoz violated 27 plaintiff’s “right to be treated equally.” (Id.). A pleading that merely alleges “naked assertion[s] 28 devoid of further factual enhancement” is insufficient to comply with Rule 8. Iqbal, 556 U.S. at 678 1 (alteration in original, internal quotation marks omitted). To the extent that plaintiff is purporting 2 to raise any claims concerning his treatment while detained at the WVDC apart from what appears 3 to be a single incident of the alleged use of excessive force by Deputy Munoz, plaintiff’s FAC does 4 not comply with Rule 8 because it does not set forth “simply, concisely, and directly [the] events” 5 that plaintiff believes entitle him to relief from any defendant. See Johnson, 574 U.S. at 12. 6 Further, because it is not clear from the very limited factual allegations in the FAC what actions 7 the only named defendant is alleged to have taken that plaintiff is alleging violated his 8 constitutional rights, the FAC fails to provide Deputy Munoz with fair notice of what actions he is 9 being sued for under what legal theory. 10 Plaintiff once again is admonished that, for each federal civil rights claim he wishes to raise 11 against a specific defendant, plaintiff must allege that a specific defendant, acting under color of 12 state law, deprived him of a right guaranteed under the United States Constitution or a federal 13 statute. See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). “A person 14 deprives another ‘of a constitutional right, within the meaning of section 1983, if he does an 15 affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is 16 legally required to do that causes the deprivation of which [the plaintiff complains].’” Leer v. 17 Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 18 1978)) (emphasis and alteration in original). As the Supreme Court has made clear, in order to 19 state a claim against an individual defendant, plaintiff must allege sufficient factual allegations 20 against that defendant to nudge each claim plaintiff wishes to raise “across the line from 21 conceivable to plausible.” See Twombly, 550 U.S. at 570. Here, to the extent that plaintiff wishes 22 to raise one or more claims arising from the use of excessive force against Deputy Munoz in his 23 individual capacity, as set forth below, plaintiff should allege facts showing that Deputy Munoz 24 purposely or knowingly used force against plaintiff that was “objectively unreasonable” under the 25 circumstances surrounding the incident. Plaintiff’s FAC fails to include sufficient factual allegations 26 showing what actions taken by the Deputy at which time caused plaintiff to suffer a constitutional 27 deprivation. Accordingly, the FAC fails to allege “simply, concisely, and directly [the] events” that 28 entitle him to damages. Johnson, 574 U.S. at 12. 1 Second, plaintiff once again names Deputy Munoz in his official capacity. As the Court 2 previously admonished plaintiff, the Supreme Court has held that an “official-capacity suit is, in all 3 respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 4 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Such a suit “is not a suit against the 5 official personally, for the real party in interest is the entity.” Id. at 166 (emphasis in original). 6 Accordingly, plaintiff’s claims against Deputy Munoz in his official capacity are the same as a claim 7 against his employer. To the extent that plaintiff is purporting to state any federal civil rights claims 8 against Deputy Munoz in his official capacity or against the County of San Bernardino (“County”) 9 pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 10 (1978), the Supreme Court in Monell held that “a local government may not be sued under § 1983 11 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a 12 government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts 13 may fairly be said to represent official policy, inflicts the injury that the government as an entity is 14 responsible under § 1983.” Monell, 436 U.S. at 694; see also Connick v. Thompson, 563 U.S. 51, 15 60, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011) (“under § 1983, local governments are responsible 16 only for their own illegal acts” (emphasis in original, internal quotation marks omitted)). In order 17 to state a claim arising from the execution of a local entity’s policy or custom, a plaintiff must set 18 forth factual allegations to show that the execution of a specific policy, regulation, custom or the 19 like was the “actionable cause” of any alleged constitutional violation. See, e.g., Tsao v. Desert 20 Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (“a plaintiff must also show that the policy at 21 issue was the ‘actionable cause’ of the constitutional violation, which requires showing both but-for 22 and proximate causation”). Moreover, a Monell claim may not be premised on an isolated or 23 sporadic incident. See, e.g., Gant v. Cnty. of L.A., 772 F.3d 608, 618 (9th Cir. 2014) (a plaintiff 24 does not establish liability under Monell without showing that “a single incident of unconstitutional 25 actively” was more than an “isolated or sporadic” incident); Trevino v. Gates, 99 F.3d 911, 918 (9th 26 Cir. 1996) (“Liability for improper custom may not be predicated on isolated or sporadic incidents; 27 it must be founded upon practices of sufficient duration, frequency and consistency that the 28 conduct has become a traditional method of carrying out policy.”). 1 Here, plaintiff’s FAC fails to include any factual allegations showing that the execution of 2 a specific policy, practice, or custom of the County was the “actionable cause” of a constitutional 3 injury. Further, to the extent that the Court can discern plaintiff’s claim or claims, it appears that 4 the alleged deprivation(s) arises from a single incident, which does not appear to have been 5 caused by a specific policy, practice, or custom of the County. In the “Request for Relief” portion 6 of the FAC, plaintiff references a “District Court Case” from 2016 that allegedly involved an 7 unspecified allegation of excessive force and the San Bernardino Sheriff’s Department. (ECF No. 8 15 at 6). However, plaintiff fails to allege any specific facts in his FAC that show that his claim or 9 claims against Deputy Munoz are related in any way to the claims raised in the case plaintiff 10 references that was filed several years earlier. Moreover, even if plaintiff were to allege some 11 facts showing that the two incidents were similar, one other incident that was separated in time 12 by several years cannot show a pattern. Because the alleged use of excessive force by Deputy 13 Munoz is an isolated incident, plaintiff’s factual allegations are insufficient to raise a reasonable 14 inference that any injury he suffered was caused by the execution of a practice, policy, or custom 15 of the County. Accordingly, plaintiff’s factual allegations fail to raise a claim to relief that is 16 plausible on its face against Deputy Munoz in his official capacity. 17 The Court is mindful that, because plaintiff is appearing pro se, the Court must construe the 18 allegations of the pleading liberally and must afford plaintiff the benefit of any doubt. Further, the 19 Court may not dismiss a claim because a pro se plaintiff has failed to set forth a complete legal 20 theory to support the claim alleged. See Johnson, 574 U.S. at 11. That said, the Supreme Court 21 has made clear that the Court has “no obligation to act as counsel or paralegal to pro se litigants.” 22 Pliler v. Ford, 542 U.S. 225, 231, 124 S. Ct. 2441, 159 L. Ed. 2d 338 (2004); see also Noll, 809 23 F.2d at 1448 (“courts should not have to serve as advocates for pro se litigants”). Here, plaintiff 24 fails to set forth specific factual allegations supporting any plausible federal civil rights claim 25 against any named defendant. 26 Accordingly, the Court finds that the pleading once again fails to comply with Rule 8 and 27 fails to set forth a “short and plain statement” showing the factual basis for any federal civil rights 28 claim against any defendant. The Court will provide plaintiff with an additional opportunity to 1 amend his claims. If plaintiff wishes to proceed on any federal civil rights claim against any 2 defendant in this action, then he must set forth a simple, concise, and direct statement of the 3 events that he alleges entitle him to damages from each named defendant. 4 5 B. FOURTEENTH AMENDMENT CLAIM 6 In his FAC, plaintiff now alleges that the incident with Deputy Munoz occurred on October 7 22, 2020 (ECF No. 15 at 3) “in the booking area of WVDC,” and that plaintiff then was “escorted 8 back to [his] housing unit” (id. at 5). Plaintiff does not allege any facts concerning the 9 circumstances of the incident apart from his allegation that he “was handcuffed to the front,” and 10 that he “got into an argument with” Deputy Munoz. (Id.) In the Court’s First Order Dismissing, 11 plaintiff was apprised that it was not clear from the Complaint if he was a pretrial detainee at the 12 time of the alleged incident. (ECF No. 10 at 8). 13 Because plaintiff once again has failed to allege his status at the relevant time, the Court 14 will assume that he was a pretrial detainee. Accordingly, any claim for the use of excessive force 15 arises under the Fourteenth Amendment’s Due Process Clause. Kingsley v. Hendrickson, 576 16 U.S. 389, 135 S. Ct. 2466, 2473, 192 L. Ed. 2d 416 (2015) (“We have said that the Due Process 17 Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” 18 (internal quotation marks omitted)); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1069-70 (9th 19 Cir. 2016) (en banc) (applying the Fourteenth Amendment’s “objective standard” set forth in 20 Kingsley to a pretrial detainee’s failure-to-protect claim). In order to state such a claim, a pretrial 21 detainee must allege that a defendant purposely or knowingly used force against him that was 22 “objectively unreasonable” from the perspective of a reasonable officer under the circumstances 23 surrounding the incident. See Kingsley, 576 U.S. at 396-97; see also Gordon v. Cnty. of Orange, 24 888 F.3d 1118, 1120, 1124-25 (9th Cir. 2018); McFarlin v. Penzone, 2021 WL 872145 (9th Cir. 25 Mar. 9, 2021) (to state a Fourteenth Amendment claim for the excessive use of force, a pretrial 26 detainee must show that the “force purposely or knowingly used against him was objectively 27 unreasonable” from the “perspective of a reasonable officer on the scene,” accounting for the 28 state’s legitimate security interest in managing the facility) (now citable for its persuasive value 1 pursuant to Ninth Circuit Rule 36-3). 2 Here, plaintiff alleges that he “got into an argument with” Deputy Munoz while plaintiff was 3 handcuffed. “During the argument Deputy Munoz slammed [plaintiff] to the ground.” Deputy 4 Munoz also is alleged to have “punched [plaintiff] in the right side of the head.” (ECF No. 15 at 5 5). Plaintiff, however, does not allege the topic of the “argument,” why he was in handcuffs, or 6 whether any other Sheriff’s Department official was involved in the incident. Plaintiff additionally 7 alleges that he was “scared for [his] safety,” that his “vison was blurry,” and that he “was in pain 8 in [his] head, wrist, and chest.” (Id.). Plaintiff does not allege any facts to support a reasonable 9 inference that he had cause to be “in fear that [he] was going to be severely beaten.” (Id.). 10 Further, although plaintiff seeks damages for “future medical bills” (id. at 6), he does not allege 11 that he suffered any injury that was caused by the actions of Deputy Munoz. 12 Because plaintiff fails to set forth factual allegations concerning what actions Deputy Munoz 13 took at which time under what circumstances, plaintiff’s factual allegations fail to sufficiently allege 14 that Deputy Munoz purposely or knowingly used force, or that Deputy Munoz’ purposeful use of 15 force was “objectively unreasonable” from the perspective of a reasonable officer under the 16 circumstances surrounding the incident. See Kingsley, 576 U.S. at 396-97. In order to determine 17 if the factual allegations in the pleading are sufficient to raise more than a sheer possibility that 18 Deputy Munoz acted unlawfully, the Court must evaluate factors such as: the relationship 19 between the need for the use of force and the amount of force used; the extent of the plaintiff’s 20 injury; the severity of the security issue; whether the plaintiff was actively resisting; and the 21 WVDC’s legitimate interests in maintaining order and security. See Kingsley, 576 U.S. at 397-400; 22 Iqbal, 556 U.S. at 678. Here, in the absence of factual allegations concerning the circumstances 23 surrounding the incident during which Deputy Munoz allegedly used force that was objectively 24 unreasonable, plaintiff’s FAC fails to state a plausible claim that Deputy Munoz violated plaintiff’s 25 Fourteenth Amendment rights. 26 As the Supreme Court has made clear, in order to state a claim against an individual 27 defendant, plaintiff must allege sufficient factual allegations against that defendant to nudge each 28 claim “across the line from conceivable to plausible.” See Twombly, 550 U.S. at 570. Discounting 1 plaintiff’s conclusory allegations that are unsupported by specific underlying facts, plaintiff’s bald 2 allegation concerning a single punch to his head following a verbal dispute with a Sheriff’s Deputy 3 while plaintiff was being held at the WVDC fails to give rise to a plausible federal civil rights claim. 4 See Iqbal, 556 U.S. at 681; Chavez, 683 F.3d at 1108. If plaintiff wishes to proceed on any federal 5 civil rights claim arising from this incident, then plaintiff should set forth a short and plain statement 6 of the events leading to each of his claims against each named defendant who plaintiff alleges 7 purposely or knowingly used force that was objectively unreasonable under the specific 8 circumstances of the incident. 9 * * * 10 Because plaintiff is proceeding pro se in this civil rights action, the Court will provide him 11 with another opportunity to amend. Based on the above deficiencies, plaintiff’s First Amended 12 Complaint is dismissed with leave to amend. If plaintiff desires to pursue this action, he is 13 ORDERED to file a Second Amended Complaint no later than November 5, 2021, remedying 14 the deficiencies discussed herein. Further, plaintiff is admonished that, if he fails to timely 15 file a Second Amended Complaint or fails to remedy the deficiencies of his pleading as 16 discussed herein, then the Court will recommend that the action be dismissed without 17 further leave to amend and with prejudice. 18 The Second Amended Complaint must bear the docket number assigned in this case; be 19 labeled “Second Amended Complaint”; and be complete in and of itself without reference to the 20 original Complaint or any other pleading, attachment, or document. Each claim plaintiff alleges 21 must clearly set forth which defendant(s) is alleged to be responsible for the alleged violation, and 22 clearly and concisely reference the factual allegations that are relevant to each claim. Further, if 23 plaintiff chooses to proceed with this action, then plaintiff must use the blank Central District civil 24 rights complaint form accompanying this order, must sign and date the form, must completely 25 and accurately fill out the form, and must use the space provided in the form to set forth all of 26 the claims that he wishes to assert in a Second Amended Complaint. The Clerk is directed to 27 provide plaintiff with a blank Central District civil rights complaint form. 28 In addition, if plaintiff no longer wishes to pursue this action, he may request a voluntary 1|| dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a). The clerk also is 2| directed to attach a Notice of Dismissal form for plaintiff's convenience. 3 IT IS SO ORDERED. 4 □□ □□□ Meant DATED: October 6, 2021 PAUL L. ABRAMS 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 49