(PC) Witkin v. Blackwell

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL AARON WITKIN, No. 2:17-cv-2692 JAM AC P 12 Plaintiff, 13 v. ORDER D. BLACKWELL, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 Before this court for screening is plaintiff’s first amended complaint. See ECF No. 12.

21 For the reasons stated below, the court will give plaintiff a final opportunity to amend his complaint.

23 I. RELEVANT PROCEDURAL HISTORY 24 On July 8, 2019, plaintiff’s original complaint was screened by this court. See ECF No. 7.

25 The complaint was 150 pages in length including attachments. See generally ECF No. 1. It was not filed on the court’s Civil Rights Complaint By A Prisoner form. Instead, it was filed on plain paper. See generally id. //// 1 One screening, the court found that the complaint: (1) did not present short and plain statements of plaintiff’s claims in violation of Federal Rule of Civil Procedure 8(a)(2); (2) had conflated several different, unrelated events that had not arisen out of the same transaction or occurrence, in violation Federal Rule of Civil Procedure 20; and (3) presented a number of vague and conclusory claims. See generally ECF No. 7. The court also noted that plaintiff had listed a number of John Does as defendants and had failed to tie specific actions and violations of right to specifically named defendants. See id. at 5-6.

8 Because of these deficiencies, plaintiff’s original complaint was dismissed with leave to amend. See ECF No. 7 at 6. At that time, the Clerk of Court was directed to send plaintiff a copy of this court’s civil rights complaint form. See id. at 6.

11 II. PLAINTIFF’S FIRST AMENDED COMPLAINT 12 On September 5, 2019, plaintiff filed the instant first amended complaint. ECF No. 12.

13 The complaint, which is twenty-seven pages in length with no attachments, suffers from the same deficiencies as the original complaint despite its reduced volume. Compare ECF No. 1, with ECF No. 12. Moreover, instead of filling out in its entirety and returning the civil rights complaint form that had been sent to him, plaintiff has simply sandwiched his free-form, meandering and unfocused brief in between the first and last pages of the civil rights form that he should have completed. See generally ECF No. 12. As a result, not only has plaintiff failed to provide the court with information that it needs to be able to assess the viability of his case, he has provided a second pleading that fails to provide “short and plain statement[s]” of his claims showing that he is entitled to relief. See Fed. R. Civ. P. 8(a)(2).

22 III. DISCUSSION 23 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 24 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any heightened pleading standard in cases other than those governed by Rule 9(b).”); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema //// N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.”); see also Fed. R. Civ. P. 8(a)(2).

3 With thirteen named defendants, fifteen John Doe defendants, fourteen claims,1 and twenty-three pages of rambling facts, it cannot be said that plaintiff’s first amended complaint consists of “short and plain statement[s]” which demonstrate that he is entitled to relief. See generally Fed. R. Civ. P. 8(a)(2). For this reason, the court will give plaintiff a final opportunity to file an amended complaint. Should he choose to do so, the pleading must be filed on the court’s Civil Rights Complaint By A Prisoner form, and the form must be filled out in its entirety.

9 Filling out the form should enable plaintiff to streamline his claims significantly.

10 When filing the second amended complaint, plaintiff must eliminate all preambles, introductions, argument, speeches, explanations, stories, griping, vouching, evidence, attempts to negate possible defenses, summaries, and the like from his pleading. McHenry v. Renne, 84 F.3d 13 1172, 1180 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for violation of Rule 8 after warning); see Crawford-El v. Britton, 523 U.S. 574, 597 (1998) (reiterating that “firm application of the Federal Rules of Civil Procedure is fully warranted” in prisoner cases). The court (and defendants) should be able to read and understand his pleading within minutes. McHenry, 84 F.3d at 1177. A long, rambling pleading, including many defendants with unexplained, tenuous or implausible connection to the alleged constitutional injury or joining a series of unrelated claims against many defendants will likely result in delaying the review required by 28 20 U.S.C. § 1915 or an order dismissing plaintiff’s action pursuant to Fed. R. Civ. P. 41 for violation of these instructions.

22 IV. OPTIONAL LEAVE TO AMEND 23 Plaintiff is being given a final opportunity to amend the complaint. If plaintiff chooses to file a second amended complaint, it will take the place of the original complaint. See Lacey v. //// Plaintiff’s claims range from the denial of his access to courts due to a move from one prison to another in October 2016, to deliberate indifference and retaliation when he was denied a lower bunk in September 2012 and November 2016, to the retaliatory loss of his job in November 2016, to various state tort claims. See generally ECF No. 12 at 2-24.

1 Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (amended complaint supersedes original). Any amended complaint should observe the following: 3 An amended complaint must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation).

8 An amended complaint must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

11 Any amended complaint must be written or typed so that it is complete in itself without reference to any earlier filed complaint. See L.R. 220 (E.D. Cal. 2009). This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 15 F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being treated thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 17 F.3d 896 (2012).

18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Within thirty days of the date of this order, plaintiff may file a Second Amended Complaint that complies with the Federal Rules of Civil Procedure, the Local Rules and the directives within this order.

22 Plaintiff is warned that failure to file an amended complaint within this period and/or failure to file an amended complaint that complies with federal rules and guidelines may result in a recommendation that this action be dismissed for failure to state a claim and/or failure to follow a court order. See 28 U.S.C. § 1915A(b)(1); Fed. R. Civ. P. 41(b); L.R. 110 (E.D. Cal. 2009), and 27 2. The Clerk of Court is directed to send plaintiff a copy of this court’s Civil Rights Complaint By A Prisoner form.

1 Plaintiff is warned that failure to fill out and return all pages of the civil rights complaint || form may result in a recommendation that this action be dismissed for failure to follow a court || order. See Fed. R. Civ. P. 41(b); L.R. 110 (E.D. Cal. 2009).

4 | DATED: January 24, 2020 ~ 5 Hthren— Lhar—e_ ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE