May 29, 2013
Christopher Lamar Cleveland, Plaintiff,
Joseph M. Arpaio, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Christopher Lamar Cleveland, who is confined in the Pinal County Jail in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis.  Plaintiff also filed a motion requesting federal intervention, notices, and a brief. (Doc. 5-10). Plaintiff has also filed a document captioned "Submitting Documentation to Evidence Burden of Proof" in which he seeks injunctive relief and to which he has attached copies of California records concerning his conviction there. (Doc. 11.) He has also filed a request to produce documents, a motion to produce a copy of plea agreement in a 1993 California case, and several notices. (Doc. 12-20.) The Court will dismiss the Complaint with leave to amend, deny the motion, the notices, and the brief to the extent that any relief is sought therein.
I. Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id . (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id . (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford , 542 U.S. 225, 231 (2004); see also Lopez , 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). The Court will dismiss Plaintiff's Complaint for failure to state a claim, but because the Complaint may possibly be saved by amendment, the Court will dismiss the Complaint with leave to amend.
Plaintiff alleges three counts for threat to safety, slander or defamation, and wrongful imprisonment. Plaintiff sues Maricopa County Sheriff Joseph Arpaio; Arizona Governor Jan Brewer; the National Crime Information Center (NCIC); and the Maricopa County Sheriff's Office (MCSO). Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief.
In this and other cases, Plaintiff disputes whether he was convicted in 1993 of a sexually-based offense in California and whether he is required to comply with Arizona's sex offender registration statute, Arizona Revised Statute § 13-3281. Unofficial information from the Administrative Office of the Courts for Los Angeles County, which is available on Westlaw, reflects that a person named "Christopher Lamar Cleveland" was charged with a "P 288.A" offense in Los Angeles County Court, case #SA013565, on May 13, 1993. California Penal Code § 288a penalizes oral copulation with a person under 18 years of age and/or with a person against the person's will, among other circumstances. See West's Ann. Cal. Penal Code § 288a.
Documents submitted by Plaintiff in this case from his California case reflect that: Plaintiff was convicted in 1993 of a "288.A" offense in California for which the California court sentenced him to 365 days in jail, less good time credit resulting in actual incarceration for 257 days, and three years on probation; the court ordered that Plaintiff have no further contact with the victim or his co-defendant and that he register as a sex offender within 30 days; the court stated that it had no objection to Plaintiff's probation supervision being transferred to Arizona; and the court ordered Plaintiff to report to probation within 48 hours of release from jail, unless he was extradited to Arizona. (Doc. 11 at 11.) Plaintiff asserts that these documents reflect that he was released on November 30, 1993, but he contends there is no evidence that he received a sentence rather than the mere dismissal of the California charge.
According to Plaintiff, after serving time in California, he was convicted in Arizona of armed robbery in Maricopa County Superior Court, case #CR9310362. Prior to his release from that sentence, however, a Corrections Officer III told him that he was required to register as a sex offender based on the California conviction. (Doc. 10 at 7-8.)
Between October 31, 1994 and April 23, 2001, Plaintiff was incarcerated in Arizona for an armed robbery conviction imposed by the Maricopa County Superior Court, case#9310362. Shortly before his release from the armed robbery conviction, Plaintiff was required to register as a sex offender based upon his conviction in California case SA013565, which was reflected on the National Crime Information Center (NCIC) database. Plaintiff apparently did register and did not then contend that he had never been convicted of the offense in California. Plaintiff was released from ADC custody.
On September 30, 2003, Plaintiff was sentenced to 2.5 years in prison after he pleaded guilty to failing to register as a sex offender based upon California case SA013565, in Maricopa County Superior Court case #CR2003-037149. On December 18, 2007, Plaintiff was sentenced to three years in prison after he again pleaded guilty to failing to register as a sex offender with one prior felony in Maricopa County Superior Court case #CR2007-030890, again based on California case SA013565. Plaintiff does not explain why he pleaded guilty in these cases if he had not been convicted in the California case.
Plaintiff is currently charged in two cases in Pinal County Superior Court. In case #CR201200144, he is charged with one count of failure as a sex offender to file a notice of address or name charge, and in case #CR201202592, he is charged with one count each of failure as a sex offender to file a notice of moving out of the county and failure to register with the sheriff's department. In a minute entry issued December 20, 2012 in CR201200144, the court set a hearing on a state motion to dismiss, which was scheduled to be held on January 8, 2013. Based on the scheduled hearing in that case, the court reset the pretrial conference in CR201202592 to be held the same day. Both hearings have since been continued for reasons, and to a date, not reflected in records currently available on-line.
In his Complaint in this case, Plaintiff alleges the following: NCIC falsely reported that Plaintiff was convicted in Los Angeles Superior Court in Santa Monica, California, of lewd acts with a minor for which he was incarcerated for one year, case #SA01356501. On April 23, 2001, MCSO, under Joseph Arpaio, falsified and unlawfully used unauthorized information to charge Plaintiff with failure to comply with Arizona Revised Statute § 13-3821(A), i.e., failure to register as a sex offender. According to Plaintiff, MCSO relied on invalid information absent proof from the California court to substantiate that he had been convicted or served a sentence for a sex offense and that he has been wrongfully prosecuted for failure to comply with § 13-3821(A). Plaintiff also contends that Arpaio, MCSO, NCIC, and Brewer lacked valid grounds to enforce § 13-3821 against him and that he has been, and is, wrongfully incarcerated for failure to comply with § 13-3821(A). Plaintiff also asserts that the Clerk of Court for Los Angeles County has indicated that case SA01356501 was dismissed, but that Plaintiff has nevertheless been repeatedly charged with failure to comply with § 13-3821.
IV. Failure to State a Claim
To state a claim under § 1983, a plaintiff must allege facts to support that (1) the conduct about which he complains was committed by a person acting under the color of state law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander , 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode , 423 U.S. 362, 371-72, 377 (1976).
Plaintiff sues the NCIC, which is maintained by the Federal Bureau of Investigation (FBI). As described above, a plaintiff may bring an action against a person acting under color of state law under § 1983. Because NCIC operates under color of federal law, it may not be sued under § 1983. Therefore, it appears that Plaintiff is attempting to seek relief against the NCIC under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). A Bivens claim is analogous to one brought pursuant to § 1983, except for the replacement of a state actor under § 1983 by a federal actor under Bivens. Martin v. Sias , 88 F.3d 774, 775 (9th Cir. 1996) (citing Van Strum v. Lawn , 940 F.2d 406, 409 (9th Cir. 1991)). However, a Bivens claim may only be maintained against officials acting under color of federal law in their individual capacities; neither the United States, nor an agency, is a proper defendant under Bivens. See FDIC v. Meyer , 510 U.S. 471, 486 (1994) (federal agencies are not proper defendants in a Bivens action); Myers v. United States Marshals Serv., No. CV10-2662, 2011 WL 671998, at *2 (S.D. Cal. Feb. 15, 2011). Because NCIC is a federal entity or agency and not an official, it may not be sued under Bivens. Accordingly, the NCIC will be dismissed as a Defendant.
Plaintiff also sues MCSO. "Government entities have no inherent power and possess only those powers and duties delegated to them by their enabling statutes. Thus, a governmental entity may be sued only if the legislature has so provided." Braillard v. Maricopa County , 232 P.3d 1263, 1269 (Ariz.Ct.App. 2010) (citations omitted). Although Arizona counties have been granted the power to sue and be sued through their boards of supervisors, see A.R. S. § 11-201(A)(1), "no Arizona statute confers such power on MCSO as a separate legal entity." Id . MCSO, therefore, is a non-jural entity without the capacity to be sued. See id.; Lovejoy v. Arpaio, No. CV 09-1912-PHX-NVW , 2010 WL 466010, at * 16 (D.Ariz. Feb.10, 2010). The claims asserted against MCSO will be dismissed.
C. Brewer and Arpaio
Plaintiff also sues Arizona Governor Brewer and Maricopa County Sheriff Arpaio. While Brewer and Arpaio may be sued under § 1983, Plaintiff fails to state a claim against either.
To state a claim against an individual Defendant, a "plaintiff must allege facts, not simply conclusions, that show that [the] individual was personally involved in the deprivation of his civil rights." Barren v. Harrington , 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be liable in his official capacity, a plaintiff must allege that the official acted as a result of a policy, practice, or custom. See Cortez, 294 F.3d at 1188. In addition, there is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of someone who allegedly violated a plaintiff's constitutional rights does not make him liable. Monell, 436 U.S. at 691; Taylor, 880 F.2d at 1045. A supervisor in his individual capacity, "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045.
Plaintiff asserts that since 2001, he has been charged and incarcerated repeatedly based upon allegedly inaccurate information on NCIC that reflected that he had been convicted of a sexual offense in California. (Doc. 1 at 5.) Plaintiff asserts that he was wrongfully convicted in 2003 and 2007 Maricopa County cases, although he fails to explain why he pleaded guilty in those cases, and that Brewer and Arpaio failed to prove that he had actually ever been convicted in California.
Plaintiff's allegations against Brewer and Arpaio are vague and conclusory. Although pro se pleadings are liberally construed, Haines v. Kerner , 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the Univ. of Alaska , 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id . Plaintiff fails to allege specific facts to support that either Brewer or Arpaio were directly involved in any claimed violation of Plaintiff's constitutional rights or that either promulgated, endorsed, or enforced a policy or practice resulting in a violation of Plaintiff's constitutional rights. Accordingly, Plaintiff fails to state a claim against Brewer or Arpaio and they will be dismissed.
D. Count I
Plaintiff designates Count I as a claim for threat to safety in violation of his Thirteenth Amendment rights. A claim for threat to safety arises under the Fourteenth Amendment as to pretrial detainees and under the Eighth Amendment as to convicted inmates, but the standard is the same. To state a claim under § 1983 for threats to safety, an inmate must allege facts to support that he was incarcerated under conditions posing a substantial risk of harm and that officials were "deliberately indifferent" to those risks. Farmer v. Brennan , 511 U.S. 825, 832-33 (1994). To adequately allege deliberate indifference, a plaintiff must allege facts to support that a defendant knew of, but disregarded, an excessive risk to inmate safety. Id. at 837. That is, "the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the inference." Id.
Plaintiff has not alleged facts to support he has been or is being incarcerated under conditions posing a substantial risk of harm to him. Nor has Plaintiff alleged facts to support that any Defendant has acted with deliberate indifference to a substantial threat to his safety. Accordingly, Plaintiff fails to state a claim for threat to safety in Count I.
E. Count II
Plaintiff designates Count II as a claim for defamation or slander and violation of double jeopardy. He asserts that NCIC is falsely attributing a California conviction for a sexual offense to him for which he served a year in jail; MCSO has no copy of the case file in SA01356501; records from Culver City Municipal Court case SA01356501 reflect the case was dismissed, which was affirmed by Superior Court Clerk John A. Clarke; MCSO charged Plaintiff based on case SA01356501, although that case was dismissed; and Plaintiff has been subject to years of harassment, false arrests, wrongful incarceration, etc., as a consequence. He further contends that Arpaio, Brewer, NCIC, and MCSO violated double jeopardy by using an acquittal in SA01356501 in Culver City Municipal Court as a conviction in Los Angeles Superior Court to prosecute him for failure to register as a sex offender. He contends that Arpaio and Brewer failed to validate the information relied upon in prosecuting him for failure to register as a sex offender, which he contends rises to the level of defamation and slander.
To the extent that Plaintiff asserts claims against MCSO or NCIC, he fails to state a claim because neither are proper defendants under § 1983 or Bivens. Accordingly, Count II will be dismissed as to them.
Plaintiff also fails to state a claim for violation of double jeopardy. "The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." United States v. Chick , 61 F.3d 682, 686 (9th Cir. 1995) (quoting United States v. Halper , 490 U.S. 435, 440 (1989)). The Double Jeopardy Clause guarantees not only protection from multiple convictions and punishment, but also the right not to be "twice put to trial for the same offense." Abney v. United States , 431 U.S. 651, 660 (1977).
Plaintiff does not allege facts to support that he has twice been prosecuted for the same offense. Rather, he alleges that he has been prosecuted for multiple failures to register as a sex offender occurring on different dates. That is not sufficient to state a claim for double jeopardy. Further, a double jeopardy claim is also subject to dismissal as not having yet accrued under Heck v. Humphrey , 512 U.S. 477, 489 (1994). A civil rights claim brought pursuant to § 1983 that, if successful, would necessarily undermine the validity of a conviction or the duration of a sentence may not be brought before the prisoner has obtained a "favorable termination" of the underlying conviction; a prisoner's sole federal remedy to challenge the validity or duration of his confinement is a petition for a writ of habeas corpus. Preiser v. Rodriguez , 411 U.S. 475, 500 (1973); Docken v. Chase , 393 F.3d 1024, 1031 (9th Cir. 2004). That is, a civil rights claim under § 1983 does not accrue unless or until the prisoner has obtained a "favorable termination" of the underlying conviction. See Heck , 512 U.S. at 489; Docken , 393 F.3d at 1031. Under the "favorable termination" rule:
In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by action whose unlawfulness would render a conviction of sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal... or called into question by a federal court's issuance of a writ of habeas corpus...
Heck , 512 U.S. at 486-87. Without such a showing of a "favorable termination, " a person's cause of action under § 1983 has not yet accrued. Id. at 489. Thus, success on any claim pursuant to § 1983 that would necessarily imply the invalidity of confinement, or its duration, does not accrue "and may not be brought" unless and until the underlying conviction, sentence or parole decision is reversed. Only then may a plaintiff properly seek relief pursuant to 42 U.S.C. § 1983.
Success on a civil claim of double jeopardy would necessarily imply the invalidity of the resulting conviction. Plaintiff has not alleged facts to support a violation of the Double Jeopardy Clause or facts to support that any conviction in violation of double jeopardy has been invalidated. Accordingly, the portion of Count II asserting a double jeopardy claim will not accrue unless and until the underlying conviction has been invalidated.
Plaintiff also asserts a claim for slander and defamation. An action for damage to reputation ordinarily "lies... in the tort of defamation, not in [42 U.S.C. §] 1983." Fleming v. Dep't of Public Safety , 837 F.2d 401, 409 (9th Cir. 1988). "To recover damages for defamation under § 1983, a plaintiff must satisfy the stigma-plus test.'" American Consumer Pub. Ass'n, Inc. v. Margosian , 349 F.3d 1122, 1125-26 (9th Cir. 2003) (quoting Cooper v. Dupnik , 924 F.2d 1520, 1532 (9th Cir. 1991), rev'd on other grounds, 963 F.2d 1220, 1235 n.6 (9th Cir. 1992) ( en banc )). "Under that test, a plaintiff must allege loss of a recognizable property or liberty interest in conjunction with the allegation of injury to reputation.'" Id. at 1126 (quoting Cooper , 924 F.2d at 1532). The injury must be to a "previously recognized right or status." WMX Tech., Inc. v. Miller , 80 F.3d 1315, 1319 (9th Cir. 1996) (citing Paul v. Davis , 424 U.S. 693, 711 (1976)). Further, "the stigma-plus test' requires that the defamation be accompanied by an injury directly caused by the Government, rather than an injury caused by the act of some third party [in reaction to the Government's defamatory statements]." Id. at 1320 (injuries caused by third party's response to government statements not cognizable under § 1983). "There are two ways to state a cognizable § 1983 claim for defamation-plus: (1) allege that the injury to reputation was inflicted in connection with a federally protected right, or (2) allege that the injury to reputation caused the denial of a federally protected right." Herb Hallman Chevrolet, Inc. v. Nash-Holmes , 169 F.3d 636, 645 (9th Cir. 1999); see Paul , 424 U.S. at 703.
Plaintiff alleges an injury to his reputation based on the actions of others in reaction to allegedly defamatory statements by governmental statements. He does not allege facts to support that any injury to reputation was inflicted in connection with a federally protected right. Nor does he allege facts to support that the injury to his reputation caused the denial of a federally protected right. Further, Plaintiff's allegations against Arpaio and Brewer in Count II are vague and conclusory. Plaintiff fails to allege facts to support that either directly violated Plaintiff's constitutional rights or facts to support that either promulgated or endorsed a policy or practice resulting in the violation of Plaintiff's constitutional rights. For these reasons, Plaintiff fails to state a defamation claim.
F. Count III
Plaintiff designates Count III as a claim for violation of the Ninth Amendment, wrongful imprisonment, and constructive fraud as to records concerning his having been convicted of a sex offense in California. He alleges that SA01356501 was dismissed in Culver City Municipal Court and that no further record of that case should be found in other California jurisdictions; NCIC provided false information in judicial proceedings, which is fraud; since April 23, 2001, Plaintiff has been "held from fighting" this fraud to prove that he was never convicted; Plaintiff has served seven years as a result of MCSO negligently failing to obtain proof that he was actually convicted of a sex offense; and state and federal agencies and officials failed to produce proof that Plaintiff had been convicted of a sex offense or to disclose their own fraudulent conduct.
The Ninth Amendment provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Const., Amend. IX. The Ninth Amendment "has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim." Strandberg v. City of Helena , 791 F.2d 744, 748 (9th Cir. 1986); see Froehlich v. Wisconsin Dep't of Corr. , 196 F.3d 800, 801 (7th Cir. 1999); Johnson v. Texas Bd. of Crim. Just. , 281 Fed.Appx. 319, 320 (5th Cir. 2008). Accordingly, Plaintiff fails to state a claim under the Ninth Amendment.
Plaintiff otherwise appears to be attempting to challenge one or more prior Arizona convictions and/or the underlying basis for pending prosecutions. To the extent that Plaintiff is attempting to challenge prior convictions, he may not do so under § 1983 or Bivens. Rather, he must do so by filing a habeas petition under 28 U.S.C. § 2254.
To the extent that Plaintiff seeks intervention by this Court in connection with currently pending criminal cases, the Younger abstention doctrine bars consideration of his claim. The abstention doctrine under Younger v. Harris , 401 U.S. 37 (1971), prevents a federal court in most circumstances from directly interceding in ongoing state criminal proceedings. The Younger abstention doctrine also applies while a case works its way through the state appellate process, if a prisoner is convicted. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans , 491 U.S. 350, 369 (1989). Only in limited, extraordinary circumstances will the Younger doctrine not bar federal interference with ongoing (non-final) state criminal proceedings. Such circumstances include when a prisoner alleges that he is being subjected to double jeopardy. See Mannes v. Gillespie , 967 F.2d 1310, 1312 (9th Cir. 1992). Speedy trial claims may also be reviewed if a detainee is seeking to compel the state to bring him to trial, rather than seeking dismissal of the charges, and the detainee has exhausted all of his state court remedies. Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484, 489-90 (1973); see In re Justices of Superior Court Dep't of Mass. Trial Court , 218 F.3d 11, 18 & n.5 (1st Cir. 2000).
In this case, Plaintiff is not seeking to compel the state to bring him to trial, rather than seeking dismissal, nor does he allege the exhaustion of all of his state court remedies. Further, while Plaintiff elsewhere asserts that his pending prosecutions violate double jeopardy, he does not allege, nor does it otherwise appear, that he is being re-prosecuted for identical failures to register. Any challenges to Plaintiff's current prosecutions for failure to register, including that he has never been convicted of a sex offense, should be presented in state court. The Court will dismiss Count III for failure to state a constitutional claim under the Ninth Amendment and based on the Younger abstention doctrine.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet , 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co. , 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik , 963 F.2d at 1262. Any cause of action that was raised in the original complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh , 814 F.2d 565, 567 (9th Cir. 1987).
VI. Plaintiff's Motions and Requests
Plaintiff in part requests injunctive relief. (Doc. 11.) He contends that documents reflect that charges against him were dismissed by the California court and/or that the records are inconsistent. He seeks an injunction to "ensure he [is] properly provided fairness due to the merits." (Id. at 4.) As discussed herein, the Younger abstention doctrine bars intervention by this Court in pending state criminal cases. Accordingly, to the extent that Plaintiff seeks injunctive relief, his request will be denied.
Plaintiff has also filed a motion to produce a "written plea in SA1356501." (Doc. 14.) To the extent that Plaintiff seeks discovery, this motion is premature prior to service of any amended complaint on any Defendant. For analogous reasons, the Court will deny Plaintiff's request production of documents and "Statement of Facts." (Doc. 13, 15.)
Finally, Plaintiff has filed numerous notices. (Doc. 12, 16-20.) To the extent that he seeks any relief in his notices, such relief will be denied. (Id.)
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik , 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis is granted. (Doc. 2.)
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3) The Complaint is dismissed for failure to state a claim. (Doc. 1.) Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
(6) Plaintiff's other filings, including motions, notices, statements, letters, and requests are denied to the extent that any relief is sought therein. (Doc. 5-20.)