Opinion
4:23-cv-00847-LPR
04-30-2024
JONATHAN EUGENE HUMBERT #18812 PLAINTIFF v. SHARON CASTLEBERRY DEFENDANT
ORDER
LEE P. RUDOFSKY, UNITED STATES DISTRICT JUDGE
The Court has reviewed the Recommended Disposition (RD) submitted by United States Magistrate Judge Joe J. Volpe (Doc. 8) and the Plaintiff's Objections (Doc. 9). After a de novo review of the RD, along with careful consideration of the Objections and the entire case record, the Court hereby approves and adopts the RD in its entirety as this Court's findings and conclusions in all respects.
Two additional points are worth mentioning. First, it is clear any official capacity claims are non-viable because the First Amended Complaint does not allege a policy, plan, or custom on the part of the County that was a motivating force of any putatively wrongful conduct. Second, whereas Judge Volpe's earlier Order in this case suggested the Sixth Amendment claim in the original Complaint alleged enough to pass screening, the RD recommends that the Sixth Amendment claim in the First Amended Complaint fails at the screening stage. That is because the original Complaint included allegations concerning a letter Plaintiff wrote to his attorney, whereas the First Amended Complaint drops any reference to a letter Plaintiff wrote to his attorney. Plaintiff was explicitly warned in Judge Volpe's prior Order that “an Amended Complaint will render the original Complaint without legal effect,” that “[o]nly claims properly set out in the Amended Complaint will be considered,” and that “an Amended Complaint must . . . renew Plaintiff's properly pled Sixth Amendment right to counsel claim against Defendant Castleberry in her personal capacity” in addition to trying to cure the deficiencies with respect to the other claims in the original Complaint. Order (Doc. 6) at 4.
Accordingly, Plaintiff's Amended Complaint (Doc. 7) is DISMISSED without prejudice for failing to state a plausible claim for relief. The Court recommends that dismissal of this case count as a “strike,” in the future, for purposes of 28 U.S.C. § 1915(g). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order or the accompanying Judgment would not be taken in good faith.
IT IS SO ORDERED.