Richardson v. Valdez

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 6 DONN RICHARDSON Case No.: 20-cv-01760-BAS-JLB 7 CDCR # AC9306, ORDER DENYING MOTION FOR Plaintiff, 8 LEAVE TO FILE AN AMENDED v. COMPLAINT AS MOOT 9 O. VALDEZ “LT.” S.H.O., (ECF No. 6) E. CHAVARRIA “AW”, C.O.O., 10 Defendants. 11 12 Donn Richardson (“Richardson” or “Plaintiff”), currently incarcerated at Pelican 13 Bay State Prison (“PBSP”) located in Crescent City, California, and proceeding pro se, 14 filed a civil rights complaint pursuant to 42 U.S.C. § 1983, together with a motion to 15 proceed in forma pauperis (“IFP”) on September 9, 2020. (See Compl., ECF No. 1; Mot. 16 for IFP, ECF No. 2.) On December 7, 2020, Richardson paid the filing fee required by 28 17 U.S.C. § 1914(a). (See ECF No. 3.) 18 On December 17, 2020, the Court screened the Complaint as required by 28 U.S.C. 19 §§ 1915(e)(2)(B) and 1915A(b) and dismissed it because Plaintiff had failed to state a 20 plausible Eighth Amendment claim upon which § 1983 relief could be granted, see 28 21 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), but 22 gave him leave to amend with regard to any due process violation resulting from a failure 23 to have his credits restored after being found not guilty of a rules violation. (See Dec. 17, 24 2020 Order, ECF No. 4.) Richardson was granted sixty (60) days from the date of the 25 dismissal Order in which to file an Amended Complaint alleging a due process violation 26 stemming from any failure to restore his lost credits after he was found not guilty at his 27 second disciplinary hearing. (Id.) He was advised that his Amended Complaint must be 28 complete by itself without reference to his original pleading, and that Defendants not 1 |}named and any claim not re-alleged in his Amended Complaint will be considered waived. 2 || Ud. (citing S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 3 || 896 F.2d 1542, 1546 (Oth Cir. 1989) (“[A]n amended pleading supersedes the □□□□□□□□□□□□□ 4 || Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 5 || with leave to amend which are not re-alleged in an amended pleading may be “considered 6 || waived if not repled.”)).) He was also advised that if he failed to file an Amended 7 ||Complaint within the time provided, the Court will enter a final Order dismissing this civil 8 || action based both on his failure to state a claim upon which relief can be granted pursuant 9 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure to prosecute in compliance 10 || with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th 11 2005) (‘If a plaintiff does not take advantage of the opportunity to fix his complaint, 12 district court may convert the dismissal of the complaint into dismissal of the entire 13 || action.”’). 14 Richardson has now filed a Motion for Leave to File an Amended Complaint. (ECF 15 ||No. 6.) The Court granted Richardson leave to file an Amended Complaint in its December 16 || 17, 2020 Order, but only as to the aforementioned due process claim regarding failure to 17 ||restore his lost credits after his second disciplinary hearing. Amendment would be futile 18 to his Eighth Amendment claim because “[a] claim that the revocation of . . . earned 19 credits constitutes cruel and unusual punishment in violation of the Eighth Amendment is 20 frivolous and requires no discussion.” Galindo v. Cockrell, No. Civ. A. 400 CV 1802 Y, 21 |{2001 WL 1057982, at *4 (N.D. Tex., Aug. 31, 2001). 22 Accordingly, his Motion for Leave to File an Amended Complaint is DENIED as 23 ||moot. If Richardson wishes to add claims or defendants who are unrelated to the claims 24 made in his original Complaint, he must file a separate civil action. If he needs 25 || additional time to file an Amended Complaint, he may file a Motion for Extension of Time. 26 IT IS SO ORDERED. 27 / bt 28 || DATED: January 5, 2021 Cypilig _| Hohe st United States District Judge