1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GLENN SUNKETT, Case No. 1:21-cv-01137-HBK (PC) 12 Plaintiff, ORDER STRIKING THIRD AMENDED

COMPLAINT FOR FAILURE TO COMPLY

13 v. WITH A COURT ORDER1 14 T. REDMON and T. BOERUM, (Doc. No. 32) 15 Defendants. SEPTEMBER 15, 2023 DEADLINE

16 17 Pending before the Court for screening under 28 U.S.C. § 1915A is the third amended pro 18 se civil rights complaint filed under 42 U.S.C. § 1983 by Glenn Sunkett—a prisoner. (Doc. No. 19 32, “TAC”). For the reasons discussed below, the Court strikes Plaintiff’s TAC. The Court will 20 afford Plaintiff one final opportunity to comply with the Court’s June 24, 2021 Order and file a 21 third amended complaint solely as to his due process claim against Defendants Redmon and 22 Boerum, or voluntarily dismiss his TAC, before recommending the district court dismiss this 23 action. 24 PROCEDURAL HISTORY 25 Plaintiff initiated this action in the Sacramento Division of this Court. (Doc. No. 1). The 26 previously assigned Magistrate Judge screened Plaintiff’s second amended complaint (“SAC”) 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 which alleged, inter alia, that Plaintiff was wrongfully denied family visits because of a 2 Mendocino County Jail Disciplinary Report that was wrongfully issued against Plaintiff. (Doc. 3 No. 28 at 8; Doc. Nos. 29, 33). Additionally, the SAC asserted multiple claims for violations of 4 Plaintiff’s free exercise of religion under the First Amendment, double jeopardy under the Fifth 5 Amendment, cruel and unusual punishment under the Eighth Amendment, due process and equal 6 protection under the Fourteenth Amendment, and a multitude of violations of state laws and 7 regulations and the California constitution. (Doc. No. 28 at 3-4, 19-26). 8 Upon screening, the previously assigned magistrate judge issued findings and 9 recommendations that Plaintiff be permitted to proceed on a potentially cognizable due process 10 claim against Defendants Redmon and Boerum “in connection with the December 4, 2015 11 hearing and subsequent application of the administrative determinant and increased placement 12 score without notice and an opportunity to be heard.” (Doc. No. 29 at 6:17-19). The previously 13 assigned magistrate judge found the SAC otherwise failed to state any other cognizable claim. 14 Pertinent to this Order, the previously assigned magistrate judge recommended: (1) the reliance 15 on the false disciplinary report from Mendocino County Jail to deny Plaintiff family visits did not 16 constitute a cognizable claim; (2) Plaintiff did not have a constitutional right to family visits; (3) 17 Plaintiff’s due process challenges in connection with the July 30, 2009 incident report and the 18 2010 hearing at San Quentin were time barred; (4) the denial of Plaintiff’s family visits due the 19 false escape charge lodged against Plaintiff does not establish a violation of the equal protection 20 clause; (5) allegations that defendants compelled Plaintiff to undertake a hunger strike did not 21 constitute deliberate indifference and therefore was not a cognizable claim under the Eighth 22 Amendment; and (6) the Court should decline to exercise jurisdiction over Plaintiff’s state law 23 claims. (Id. at 6-12). The district judge adopted the findings and recommendations and ordered 24 Plaintiff to file a TAC only to his due process claims against Redmon and Boerum. (Doc. No. 31 25 at 2: 25-26). 26 After Plaintiff timely filed his TAC, this action was transferred to the undersigned because 27 the events giving rise to the TAC occurred at Kern Valley State Prison. (Doc. No. 32 at 1; Doc. 28 No. 33). The TAC is almost a mirror image of Plaintiff’s SAC. The TAC alleges a violation of 1 Plaintiff’s due process rights, which is permissible under the Court’s June 24, 2021 Order. 2 However, the TAC also reasserts the same claims that were already found not cognizable alleging 3 Defendants (1) denied Plaintiff from enjoying his constitutional right to family visits; (2) violated 4 the equal protection clause; (3) relied on a false disciplinary report from Mendocino County Jail 5 to deny Plaintiff family visits; (4) denied Plaintiff due process in connection with the July 30, 6 2009 incident report and the 2010 hearing at San Quentin; (5) were deliberately indifferent in 7 violation of the Eighth Amendment by compelling Plaintiff to undertake a hunger strike; (6) and 8 the same state law claims the Court previously declined to exercise supplemental jurisdiction 9 over. (Doc. No. 32 at 8, 22-26).2 Additionally, the TAC includes numerous superfluous and 10 irrelevant facts. 11 APPLICABLE LAW AND ANALYSIS 12 Rule 8 states that “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 13 8(d)(1). A district court has the power to dismiss a complaint when a plaintiff fails to comply 14 with Rules 8’s pleading directives. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); 15 Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). When the factual 16 elements of a cause of action are not organized into a short and plain statement for each particular 17 claim, a dismissal for failure to satisfy Rule 8(a) is appropriate. Sparling v. Hoffman Constr. Co., 18 864 F.2d 635, 640 (9th Cir. 1988); see also Nevijel, 651 F.2d at 674. 19 Under Rule 8, allegations of facts that are extraneous and not part of the factual basis for 20 the particular constitutional claim are not permitted. See Knapp v. Hogan, 738 F.3d 1106, 1109 21 (9th Cir. 2013) (recognizing that Rule 8 can be violated when the plaintiff provides too much 22 information). As an initial matter, Plaintiff’s TAC, which includes 105 separate averments of 23 facts, fails to comply with Rule 8 due to its failure to state short and plain statements. 24 Additionally, the Courts have discretion to strike a complaint and may strike a complaint 25 if it fails to comply with a court order. Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) 26 (magistrate judge struck complaint because it failed to comply with the Federal Rules of Civil 27 2 The Court refers to the page numbers of the Third Amended Complaint as reflected on the Court’s 28 CM/ECF system instead of the page numbers on the Plaintiff’s Third Amended Complaint. 1 Procedure); see also Bishop v. Harrington, 2013 U.S. Dist. LEXIS 130010, at *4 (E.D. Cal. Sept. 2 10, 2013) (striking complaint because it failed to comply with the court’s previous screening 3 order). Here, the Court ordered Plaintiff to file a TAC concerning only his due process claims 4 against Defendants Redmon and Boerum. While the TAC only names Redmon and Boerum as 5 Defendants, it is almost a mirror image of the SAC and reasserts the same claims previously 6 found not cognizable. Thus, Plaintiff’s filing of the TAC is in direct violation of the Court’s June 7 24, 2021 Order. (See Doc. No. 31). 8 Despite Plaintiff’s blatant violation of a court order, the undersigned will afford Plaintiff 9 one final opportunity to file an third amended complaint before recommending the district court 10 dismiss this action. If Plaintiff chooses to file a third amended complaint, then he shall only 11 assert his due process claims against Redmon and Boerum that are connected with the December 12 4, 2015 hearing and the application of the administrative determinant that increased Plaintiff’s 13 placement score without notice and an opportunity to be heard. Plaintiff should avoid using 14 diary-like entries of facts that are not relevant to his due process claims. Instead, Plaintiff should 15 allege short and plain statements that document what transgression each Defendant committed, 16 where it was committed, and when it was committed as it relates to his due process claims 17 connected with the December 4, 2015 hearing. A failure to comply with this order and the 18 Court’s June 24, 2021 Order will result in the undersigned recommending the district court 19 dismiss this action. 20 OPTIONS 21 To continue the prosecution of this action, Plaintiff must take one of the following three 22 options no later than September 15, 2023. First Option: Because the Court cannot determine 23 that the filing of an amended complaint cannot cure the deficiencies identified above, the Court 24 will afford Plaintiff an opportunity to file an amended complaint if he chooses. An amended 25 complaint supersedes (replaces) the current complaint and, thus, the amended complaint must be 26 free-standing and complete. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 27 1542, 1546 (9th Cir. 1989). Plaintiff should use the Court’s approved Prisoner Civil Rights 28 Complaint Form to file his amended complaint and he must title it “Third Amended Complaint.” 1 Plaintiff must allege facts sufficient to show that the defendant violated his civil rights. Plaintiff 2 may not amend the complaint to add any other claims. Second Option: Plaintiff may file a 3 Notice stating he intends to stand on his current TAC subject to the undersigned recommending 4 the district court dismiss for the reasons stated in this Order. If the Court dismisses this case 5 finding that the complaint fails to state claim or is in direct contravention to a court order, the 6 dismissal will count as a strike under the PLRA.3 Third Option: Because no defendant has yet 7 been served, Plaintiff may file a Notice of Voluntary Dismissal without prejudice under Federal 8 Rule of Civil Procedure 41(a)(1) which would preclude this action as counting a strike under the 9 PLRA. 10 Alternatively, if Plaintiff fails to timely respond to this Court Order, i.e., fails to perform 11 any of the three options, the undersigned will instead recommend that the district court dismiss 12 this case as a sanction for Plaintiff’s failure to comply with a court order and for failing to 13 prosecute this action after its determination that the complaint failed to state a claim, which will 14 count as strike under the PLRA. See Local Rule 110; Fed. R. Civ. P. 41(b). 15 Accordingly, it is ORDERED: 16 1. The Clerk of Court is directed to STRIKE Plaintiff’s Third Amended Complaint. 17 (Doc. No. 32). 18 2. No later than September 15, 2023, Plaintiff must elect one of three 19 aforementioned options and deliver to correctional for mailing: (a) a Third Amended Complaint; 20 (b) a Notice stating that he intends to stand on the current TAC subject to the undersigned 21 recommending the district court to dismiss the Complaint for the reasons stated in this Order; or 22 (c) a Notice stating he wishes to voluntarily dismiss this action without prejudice under Fed. R. 23 Civ. P. 41 to avoid a strike. 24 3. If Plaintiff fails to timely comply with this Court Order or seek an extension of 25 3 Under § 1915(g), prisoners who have repeatedly brought unsuccessful suits may be barred from bringing 26 a civil action and paying the fee on a payment plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, or for failure to state a claim. Lomax v. Ortiz-Marquez, 140 S. Ct. 27 1721, 1723 (2020); see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal for failure to state a claim qualifies as a 28 strike under § 1915(g). Lomax, 140 S. Ct. at 1727. 1 | time to comply, the Court will recommend that the district court dismiss this action for Plaintiff’ s 2 | failure to comply with this Court Order and prosecute this action. 3 4. The Clerk of Court shall include a blank civil rights complaint form for □□□□□□□□□□□ 4 | use as appropriate. 5 ° | Dated: _ August 15,2023 Mile. □□□ foareA Zacks 7 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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