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Marroquin v. Esparza

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Nov 17, 2011
No. C 11-0633 CRB (PR) (N.D. Cal. Nov. 17, 2011)

Opinion

No. C 11-0633 CRB (PR)

11-17-2011

MARCO MARROQUIN, H-62380, Plaintiff(s), v. S. ESPARZA, et al., Defendant(s).


SECOND ORDER OF

DISMISSAL WITH LEAVE TO

AMEND

Plaintiff, a prisoner at Pleasant Valley State Prison (PVSP), filed a pro se complaint under 42 U.S.C. § 1983 alleging that, while he was at the Correctional Training Facility (CTF), he complained to correctional staff about being sexually harassed by two inmates. But the harassment increased rather than decreased, which ultimately resulted in his getting in an altercation with one of the inmates and his receiving a disciplinary finding of battery on another inmate without serious injury. Plaintiff sought removal of the disciplinary finding and damages for the correctional staff's handling of his complaint.

Per order filed on July 21, 2011, the court dismissed plaintiff's allegations that CTF's correctional staff mishandled his complaint of sexual harassment with leave to amend to set forth specific facts showing that one or more defendants were deliberately indifferent to plaintiff's health or safety, if possible. Plaintiff was also advised that he must link each named defendant with his allegations of wrongdoing so as to show how each defendant actually and proximately caused the deprivation of his federal rights of which he complains. The court also dismissed plaintiff's request for removal of the disciplinary finding of battery on another inmate without serious injury with leave to amend to set forth specific facts showing that the disciplinary finding is not supported by some evidence in the record, if possible. The made clear that failure to file a proper amended complaint within 30 days would result in the dismissal of this action.

Plaintiff timely filed a First Amended Complaint (FAC) repeating the same brief and insufficient allegations of his original complaint. And although he attached a declaration this time around, it is written in Spanish. This will not do. Plaintiff's original complaint was written in English, presumably with the help of fellow prisoners. Plaintiff must seek assistance from fellow prisoners again and submit a proper amended complaint written in English.

For the foregoing reasons, the FAC is dismissed with leave to amend, as indicated above and in the court's prior order of dismissal with leave to amend, within 30 days of this order. The pleading must be simple and concise and must include the caption and civil case number used in this order and the words SECOND AMENDED COMPLAINT on the first page. Failure to file a proper second amended complaint (SAC) within the designated time will result in the dismissal of this action.

Plaintiff is advised that the SAC will supersede the original complaint, FAC and all other pleadings. Claims and defendants not included in the SAC will not be considered by the court. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

SO ORDERED.

CHARLES R. BREYER

United States District Judge


Summaries of

Marroquin v. Esparza

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Nov 17, 2011
No. C 11-0633 CRB (PR) (N.D. Cal. Nov. 17, 2011)
Case details for

Marroquin v. Esparza

Case Details

Full title:MARCO MARROQUIN, H-62380, Plaintiff(s), v. S. ESPARZA, et al.…

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Nov 17, 2011

Citations

No. C 11-0633 CRB (PR) (N.D. Cal. Nov. 17, 2011)