Johnson v. Anupa

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 MATTHEW THOMAS JOHNSON, Case No. 23-cv-01078-JST 8 Plaintiff, ORDER OF DISMISSAL v. — 9 — Re: ECF Nos. 4, 7, 8 10 SGT. VIGIL, et al., Defendants. — 11 — — 12 — 13 Plaintiff, an inmate at San Francisco County Jail, has filed a pro se action pursuant to 42 14 U.S.C. § 1983 . His amended complaint (ECF No. 4) is now before the Court for review under 28 15 U.S.C. § 1915A. Plaintiff has been granted leave to proceed in forma pauperis in a separate order. 16 DISCUSSION 17 A. Standard of Review 18 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 20 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 21 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 23 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 24 989, 993 (9th Cir. 2020). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 27 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 1 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 2 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662 , 677–78 (2009). 3 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 4 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 5 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential elements: (1) that a 6 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 8 U.S. 42, 48 (1988). 9 B. Procedural History 10 Plaintiff commenced this action or around March 10, 2023, by filing a complaint against 11 San Francisco Assistant District Attorney Anupa George and San Francisco Superior Court Judge 12 Bruce Chan. ECF No. 1. He alleged that Judge Chan and ADA George violated his civil rights in 13 his August 22, 2022 preliminary hearing when Judge Chan allowed Sgt. John Cunnie to testify as 14 a prosecution witness despite Sgt. Cunnie’s uncle being friendly with Judge Chan; when ADA 15 George did not object to the conflict of interest; and when Judge Chan held Plaintiff to answer on 16 all counts without bail despite evidence that Plaintiff had no connection to the charged acts and 17 Plaintiff is not a flight risk and has no criminal tendencies. See generally ECF No. 1. On March 18 15, 2023, Plaintiff filed an amended complaint titled “Amended Complaint, Supplemental 19 Complaint,” against Sgt. Vigil and the San Francisco County Jail CJ2, alleging that on March 12 20 and 13, 2023, Sgt. Vigil was deliberately indifferent to his serious medical needs by housing in 21 high-stress cells, in retaliation for Plaintiff filing C No. 23-cv-843 JST. ECF No. 4. On March 23, 22 2023, Plaintiff filed a 3-page pleading titled “Request for amended/supplemental complaint, 23 Request for ‘TRO’ injunction,” wherein he alleges that his legal mail has been opened twice. ECF 24 No. 7. 25 Fed. R. Civ. P. 15(a)(1) allows a litigant to amend the complaint once within 21 days after 26 serving it. Fed. R. Civ. P. 15(a)(1). All other amendments require leave of court or the opposing 27 party’s written consent. Fed. R. Civ. P. 15(a)(2). The amended complaint (ECF No. 4) does not 1 (ECF No. 1). However, an amended complaint completely replaces the previous complaints. See 2 Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012). The amended complaint (ECF No. 4) 3 therefore replaces the initial complaint (ECF No. 1), and renders the initial complaint without legal 4 effect. Accordingly, any defendants named in the initial complaint but not named in the amended 5 complaint are no longer named defendants in this action; and any legal claims asserted in the 6 initial complaint but not asserted in the amended complaint are waived. See id. In other words, 7 the only operative complaint is ECF No. 4, and ECF No. 1 will not be considered by the Court. 8 The Court therefore only screens ECF No. 4. 9 ECF No. 4 may not serve as a supplemental complaint because Plaintiff has not obtained 10 leave of court to file a supplemental complaint and because the matters raised in ECF No. 4 are 11 distinct from the matters raised in ECF No. 1. See Fed. R. Civ. P. 12(d) (a party must obtain leave 12 of court to file supplemental pleading setting out any transaction, occurrence, or event that 13 happened after date of pleading to be supplemented); Planned Parenthood of So. Arizona v. Neely, — 14 — 130 F.3d 400 , 402 (9th Cir. 1997) (supplemental pleading cannot be used to introduce a separate, 15 distinct and new cause of action that should be subject of separate suit); Keith v. Volpe, 858 F.2d 16 467, 474 (9th Cir. 1988) (matters newly alleged in supplemental complaint must have some 17 relation to claims set forth in original pleading). 18 C. Dismissal without Prejudice 19 This action is DISMISSED because it is clear from the face of the amended complaint that 20 Plaintiff has not exhausted his administrative remedies. The Prison Litigation Reform Act of 21 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), amended 42 U.S.C. § 1997e to 22 provide that “[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 23 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional 24 facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 25 Here, the relevant events took place on March 12 and 13, 2023, see generally ECF No. 4; Plaintiff 26 reports filing an informal appeal on March 12, 2023 at 10:00 p.m., see id. at 1-2; signed the 27 amended complaint on March 13, 2023, see id. at 3; and mailed the amended complaint on March 1 March 13, 2023. See id. at 1. However, correctional officials’ failure to respond to Plaintiffs 2 || informal appeal within one day does not show that they have made administrative remedies 3 |} unavailable to him or that Plaintiff exhausted all levels of the jail grievance system. Plaintiff 4 || reports that he did not receive any responses to his first formal level grievance, his second formal 5 level grievance, and his third formal level grievance. See id. at 1-2. However, it is implausible 6 || that Plaintiff filed grievances at each level, received a response at each level, and appealed the 7 || response, all within a 24-hour period. The dismissal is without prejudice to Plaintiff filing a new 8 action when he has exhausted his administrative remedies.! 9 CONCLUSION 10 For the reasons set forth above, the Court DISMISSES the complaint without prejudice for 11 failure to exhaust administrative remedies. Plaintiff's request for an additional 12 || amended/supplemental complaint and a “TRO” injunction (ECF No. 7) and for an order to show ~ 13 || cause (ECF No. 8) are therefore DENIED as moot. The Clerk shall enter judgment in favor of v 14 Defendants and against Plaintiff, and close the case. 15 This order terminates ECF Nos. 7, 8. 16 IT IS SO ORDERED. & 17 || Dated: August 1, 2023 18 - JON S. TIGAR 19 nited States District Judge — 20 — — 21 — — 22 — ' Even if Plaintiff were to proceed solely on his original complaint, the Court would be required to 23 Ne we roe on dismiss the action with prejudice. The original complaint alleged that ADA George and Judge 94 || Chan violated Plaintiffs civil rights during his August 2022 preliminary hearing. The claims against ADA George and Judge Chan are barred by prosecutorial immunity and judicial immunity respectively. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (state prosecuting attorne 25 g y enjoys absolute immunity from 42 U.S.C. § 1983 liability for conduct in pursuing criminal prosecution insofar as he acts within his role as advocate for State and actions are intimatel 26 money ne associated with judicial phase of criminal process); Pierson v. Ray, 386 U.S. 547, 553-55 (1967) 07 (state judge absolutely immune from civil liability for damages for acts performed in his judicial capacity; applying judicial immunity to 42 U.S.C. § 1983 action); Mitchell v. Forsyth, 472 US. 28 511, 526 (1985) (judicial immunity is immunity from suit for damages, not just from ultimate assessment of damages).