ERICA P. GROSJEAN, Magistrate Judge.
On May 1, 2017, pro se and in forma pauperis Plaintiff William Fabricius (hereinafter, "Plaintiff") filed a Second Amended Complaint ("2AC") (ECF No. 71), which is now before the Court for screening. Plaintiff's 2AC is 56 pages long, names as defendants "Tulare County of: All Principals Agents and Employees," and describes a myriad of complaints stemming from the seizure of dogs from his property.
For the reasons described below, this Court dismissed Plaintiff's complaint with leave to amend. Plaintiff may file an amended complaint within 30 days
On November 24, 2015, Plaintiffs Wendy Jones, William Fabricius and Brian Jones filed their original complaint in this case. (ECF No. 1) Although Plaintiffs were represented by an attorney, Christine Louise Garcia, they moved to proceed in forma pauperis, which was granted. (ECF No. 8). A First Amended Complaint was filed on May 13, 2016. (ECF No. 17.) After Plaintiff Brian Jones was voluntarily dismissed on May 16, 2016 (ECF No. 18), Wendy Jones and William Fabricius remained as Plaintiffs.
On July, 5, 2016, Defendants responded to the First Amended Complaint by filing a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 34.) The Court held a motion hearing on October 7, 2016. (ECF No. 50.) Defendants were represented by counsel, and Plaintiffs Wendy Jones and William Fabricius personally appeared with their counsel.
Defendants' motion to dismiss was granted on December 1, 2016. (ECF No. 58.) The Court found that it was without jurisdiction to hear Plaintiff Wendy Jones' claims in the First Amended Complaint because it was apparent that she was challenging the outcome of adverse state court decisions on the California state trial and appellate court level, and under the Rooker-Feld man doctrine, only the Supreme Court of the United States could possibly have jurisdiction to hear an appeal from an adverse state court decision. (ECF No. 58, pp. 14-15.) Plaintiff Wendy Jones' claims were dismissed without leave to amend. (Id. at 19.)
The motion to dismiss was also granted as to Plaintiff William Fabricius, but with leave to amend. (Id. at 15-17.) Although there were facts suggesting that Fabricius litigated similar issues in state court, it was not entirely clear whether Rooker-Feldman also eliminated this Court's jurisdiction to hear Fabricius' claims in the First Amended Complaint. (Id.) Regarding Plaintiff Fabricius' claims, the Court examined the extensive state court record in which Plaintiff challenged seizure of his dogs, including a complaint in County Superior Court and appeal from an administrative hearing. It appeared that an appeal had ultimately been granted in Plaintiff's favor, finding that his dogs were not in fact dangerous, but that "evidence was provided which raised serious concerns over Mr. Fabricius and his ability to care for, handle and maintain the animals." It appeared from the Court records that Mr. Fabricius was permitted to receive his dogs back so long as he complied with health and safety codes. The state court's opinion concluded by explaining that "judicial review of a decision of the Director of Administrative Services made after a hearing pursuant of this section shall be pursuant to section 1094.6 of the California Code of Civil Procedure. . . ." Additionally, the Court noted that the Superior Court of California case covering these issues appeared to be pending. The Court thus dismissed the case with leave to amend because it appeared that Mr. Fabricius was raising claims that were the subject of state court proceedings, but the Court could not adequately determine the issue due in part of confusion regarding what exactly Plaintiff was seeking and how it related to those proceedings. (ECF No. 58, pp. 8-9.)
Ultimately, the Court concluded that the First Amended Complaint ("FAC"), as structured, was too unorganized and vague for it to reach a firm conclusion as to whether Plaintiff Fabricius, like Wendy Jones, was bringing an impermissible appeal of an adverse state court decision to the federal district court. The Court concluded:
For all of these reasons, the Court will dismiss the FAC as to Mr. Fabricius with leave to amend, and permit him thirty days in which to file a Second Amended Complaint. Plaintiff Fabricius' Second Amended Complaint, if he chooses to file one, shall omit all allegations as to Ms. Jones and further comport with the guidance in this order. It shall include a description of why he did not receive his animals following the appellate administrative proceeding, and shall describe with particularity what rights were violated by which specific defendants, as well as what relief he now seeks.
(ECF No. 58, pp. 15-16.)
Plaintiff filed his second amended complaint, after multiple extensions of time, on May 1, 2017. (ECF No. 71). It is 59 pages long. It lists as defendants: "Tulare County of: All Principals, Agents and Employees." It appears to have 13 causes of action. Some claims have labels and some do not. Almost all of the counts appear to assert violations of the criminal code, such as "First Dog Taken, violation of Title 18—Crimes and Criminal Procedure Sec. 241. Conspiracy against rights and/or 242. Deprivation of rights under color of law."
The 2AC contains a number of factual assertions that appear to relate primarily to a seizure of Plaintiff's animals and an arrest that occurred while the animals were being seized. Plaintiff also repeatedly complains about post-seizure events related to the administrative hearings concerning his animals and requests for records from local officials. Plaintiff's 2AC contains the following introduction:
(ECF No. 71, pp. 2-3.)
Plaintiff's allegations appear to stem from Tulare County's seizure of Plaintiff's animals. In one section of the 2AC, Plaintiff alleges that on April 27, 2013, Tulare Animal control seized eight of Plaintiff's dogs. Plaintiff claims that the warrant was invalid. Plaintiff claims that he is permitted to have 25 dogs. Plaintiff alleges that he sat on the front bumper of the police car for over an hour, which exacerbated certain medical ailments. He alleges that the handcuffs restricted his blood flow and caused him pain. He repeatedly alleges that he was not given Miranda rights.
Plaintiff alleges that his animals should be returned to him. He claims "[b]ased upon the hearsay evidence and/or a defective warrant and/or fraudulent testimony and/or no Miranda rights given and/or no audiotapes given, this case is void, null and the County of Tulare should be estoppelled from proceeding in this instant case due to Lack of jurisdiction and/or want of jurisdiction and/or due to fraud upon the court by the court by court officers." (ECF No. 71, p. 53.)
Under 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the Complaint to determine whether it "state[s] a claim on which relief may be granted," is "frivolous or malicious," or "seek[s] monetary relief against a defendant who is immune from such relief." If the Court determines that the Complaint fails to state a claim, it must be dismissed. Id. Leave to amend may be granted to the extent that the deficiencies of the Complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to `state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. at 663, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Id. at 678.
Federal pleading standards require only "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). See also Iqbal, 556 U.S. at 663, citing Twombly, 550 U.S. at 555.
Plaintiff bears the burden of separately setting forth his legal claims and for each claim, briefly and clearly providing the facts supporting the claim so that the Court and Defendants are readily able to understand the claims. Bautista v. Los Angeles Cnty., 216 F.3d 837, 840-41 (9th Cir. 2000).
This Court finds that Plaintiff's 2AC violates Rule 8. Plaintiff's complaint is excessive in length. It is difficult to understand. It combines various legal rules, many of which do not apply, with scripture, various facts, and many defendants. It is not clear exactly who Plaintiff alleges violated what right and why. It is not enough that Plaintiff describe a situation where Plaintiff's dogs were taken and then ask this Court to sort out who may have violated a valid constitutional right.
This is especially true in light of the first motion to dismiss.
Accordingly, the Court will give Plaintiff one more chance to file a complaint that states "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The Third Amended Complaint, if Plaintiff files one, is limited to 20 pages total. It can summarize the facts about the arrest and seizure of the dogs. Then it should list each claim against each individual person stating what that person did that violated Plaintiff's legal rights. It should then say what Plaintiff requests. See Miller v. California Dept. of Corrections and Rehabilitation, No. 1:12-CV-00353-LJO, 2013 WL 5954803, at *3 (E.D. Cal., Nov. 6, 2013) ("Rule 8(a) is one of the Federal Rules of Civil Procedure. Thus, the federal court has the authority to dismiss a complaint for violation of Rule 8(a) and to set a reasonable limitation on the page length of a pleading. . . . Therefore, the court does not find the Magistrate Judge's dismissal of Plaintiff's Complaint for violation of Rule 8(a), with leave to file an amended complaint not exceeding 25 pages, erroneous or contrary to law.").
Additionally, many of Plaintiff's causes of action are not legally proper. The Court will explain these issues and also provide the legal standards Plaintiff can use in filing a Third Amended Complaint, if he chooses to file one. But if Plaintiff again chooses to file a Third Amended Complaint that is longer than 20 pages or lists a mix of facts, defendants, and laws altogether in a way that does not make clear who violated what legal right and why, the Court will dismiss the case in full.
Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir.2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978). "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Ibid.
Plaintiff must present factual allegations against each individual defendant alleged to have violated his constitutional rights sufficient to state a plausible claim for relief and place each individual defendant on notice of the claim against them. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
Plaintiff attempts to bring all of his claims pursuant to Title 18, United States Code, Sections 241 & 242, which are criminal statutes for the federal criminal offenses of "conspiracy against rights" and "deprivation of rights under color of law." See 18 U.S.C. §§ 241, 242. These are criminal laws. In other words, these are laws that a criminal prosecutor, such as a United States Attorney or District Attorney, could use to bring a criminal case against someone. But they are not laws that can be enforced by private persons, such as Plaintiff. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) ("Appellant also claimed relief under 18 U.S.C. §§ 241 and 242. These criminal provisions, however, provide no basis for civil liability.").
In addition to 18 U.S.C. §§ 241-242, Plaintiff also repeatedly cites to: 1) Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963); 2) the Fourth Amendment exclusionary rule; 3) the fruit of the poisonous tree doctrine; 4) Nardone v. United States, 308 U.S. 338, 339, 60 S.Ct. 266, 267, 84 S.Ct. 307 (1939); 5) 18 U.S.C. § 4; and 6) ineffective assistance of counsel. These areas of law are almost exclusively applicable to criminal proceedings and thus, not applicable in the context of a civil lawsuit. For example, if the government brought a criminal case against Plaintiff for violating a criminal law, for example theft, Plaintiff could try to stop the government from using certain evidence against him under these theories. But they do not apply to this sort of case (i.e. a civil lawsuit).
Private persons, such as Plaintiff, may sue under 18 U.S.C. § 1983 for violations of their civil rights. Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Throughout the 2AC, Plaintiff complains that his rights were violated by Tulare officers' failure to read him his "Miranda" rights. But the failure to recite the rights referred to as "Miranda" does not itself violate Plaintiff's constitutional rights. Rather (with certain exceptions), the government cannot use statements by a Plaintiff after an arrest against Plaintiff in a criminal proceeding unless Miranda warnings were given. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966). In other words, if police officers fail to advise a person of his or her Miranda rights, they do not automatically violate that person's constitutional rights. However, the government will be restricted from using statements from that person to convict that person of a crime.
If Plaintiff believes that his constitutional rights were violated related to the failure to be advise of his Miranda rights, he needs to explain how the government later used his statements against him in a criminal case despite failing to provide a Miranda warning. See Chavez v. Martinez, 538 U.S. 760, 770, 123 S.Ct. 1994, 2003, 155 L. Ed. 2d 984 (2003) (citing Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974)). In other words, because Miranda is a procedural mechanism designed to protect a constitutional right, the failure to give Miranda warnings, in and of itself, does not necessarily violate an arrestee's Constitutional rights and cannot form the grounds for a § 1983 action. See Chavez, 538 U.S. at 772, 123 S. Ct. at 2004, 155 L. Ed. 2d 984 (citing Connecticut v. Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) (Miranda`s warning requirement is "not itself required by the Fifth Amendmen[t] . . . but is instead justified only by reference to its prophylactic purpose"); Tucker, 417 U.S. at 444, 94 S.Ct. 2357, 41 L. Ed. 2d 182 (Miranda's safeguards "were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected")).
Plaintiff repeatedly complains in the 2AC that he requested "audiotapes," "transcripts," and other information from the defendants, but he was unable to obtain the information from the county officials. The mere failure to provide the audiotapes and transcripts requested does not implicate a federal cause of action for violation of a federal right and is not actionable in a Section 1983 case.
Even if Plaintiff made his requests pursuant to the California Public Records Act ("CPRA"), an alleged wrongful denial of such of a request would not equate to a violation of his Constitutional rights. See Houchins v. KQED, Inc., 438 U.S. 1, 15, 98 S.Ct. 2588, 2597, 57 L. Ed. 2d 553 (1978) ("Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control."). In any case, Plaintiff's sole remedy for denial of a proper CPRA request "is to file a writ of mandamus in state court and money damages are not an available remedy." Brooks v. Vallejo City Unified Sch. Dist., No. 2:12-CV-1466-GEB-EFB, 2013 WL 943460, at *4 (E.D. Cal. Mar. 11, 2013) (citing Cal. Gov't Code §§ 6258, 6259(d)), report and recommendation adopted sub nom. Brooks v. Vellejo City Unified Sch. Dist., No. 2:12-CV-1466-GEB, 2013 WL 1330516 (E.D. Cal. Mar. 29, 2013).
A violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, could state a federal claim. See 5 U.S.C. § 552(f). See also Applegate v. California Dep't of Corr., No. 1:13-CV-01787-AWI, 2013 WL 6623822, at *2 (E.D. Cal. Dec. 16, 2013) (citing St. Michael's Convalescent Hosp. v. State of California, 643 F.2d 1369, 1373 (9th Ci r.1981) (FOIA "does not encompass state agencies or bodies"); Kerr v. United States Dist. Court for N. Dist. Of California, 511 F.2d 192, 197 (9th Cir. 1975) (explaining the purpose of FOIA was "to expand the access of the public to official records of federal agencies"). However, no federal agencies have been implicated in this case and no federal agencies are named as defendants. Thus, FOIA is inapplicable.
Plaintiff alleges violations of Rule 5-200 of the California Rules of Professional Conduct throughout the 2AC. The punishment for violation of the Rules of Professional Conduct is a matter within the purview of the State Bar, not of a court presiding over the affected case. See United States v. Sierra Pac. Indus., 857 F.Supp.2d 975, 984 (E.D. Cal. 2011) (citations omitted.) Accordingly, Plaintiff cannot state a cause of action for perceived violation(s) of the California Rules of Professional Conduct.
Plaintiff attempts to bring certain claims against judges and judicial officers.
Thus, if a Judge made a legal mistake, it could be a proper subject of appeal of that Judges' ruling. But it would not form a basis to sue that Judge.
Below the Court will set forth certain legal standards that could apply to situations where a person has been arrested unlawfully. The Court is not finding that a claim exists here, and there would still be a question of whether Plaintiff has already pursued such claims in state court subject to a state appeal. Nevertheless, the Court provides these standards to assist Plaintiff in determining whether he has a viable claim to assert in an amended complaint.
As a starting point, Plaintiff alleges that Tulare County officers lacked authority to seize his animals due a defective warrant. A claim alleging a violation of a person's Fourth Amendment right proscribing against unreasonable searches and seizures is actionable in a Section 1983 case. See Graham v. Connor, 490 U.S. 386, 390, 109 S.Ct. 1865, 1868-69, 104 L. Ed. 2d 443 (U.S. 1989). "The Fourth Amendment states unambiguously that `no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'" Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 1289, 157 L. Ed. 2d 1068 (2004) (quoting U.S. Const., Amdt. 4). "[I]n the ordinary case, seizures of personal property are unreasonable within the meaning of the Fourth Amendment . . . unless . . . accomplished pursuant to a judicial warrant issued by a neutral and detached magistrate after finding probable cause[.]" Menotti v. City of Seattle, 409 F.3d 1113, 1154 (9th Cir. 2005) (quoting Illinois v. McArthur, 531 U.S. 326, 330-31, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (internal quotation marks omitted)). "The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents." Groh, 540 U.S. at 557, 124 S. Ct. at 1289 (citing Massachusetts v. Sheppard, 468 U.S. 981, 988, n. 5, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) ("[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional"); United States v. Stefonek, 179 F.3d 1030, 1033 (C.A.7 1999) ("The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer . . . asked to issue the warrant" (emphasis in original))).
Next, Plaintiff alleges that he was unlawfully detained during the seizure of his animals from his property. "A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification." Lacey v. Maricopa Cty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001)). "Probable cause exists when there is a fair probability or substantial chance of criminal activity." Ibid. (quoting United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir.2004) (quoting United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001)) (internal quotation marks omitted). "There is probable cause for a warrantless arrest and a search incident to that arrest if, under the totality of the facts and circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the suspect had committed a crime." United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010) (quoting United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984)). "[W]arrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution." Virginia v. Moore, 553 U.S. 164, 176, 128 S.Ct. 1598, 1607, 170 L. Ed. 2d 559 (2008).
Plaintiff further alleges that officers caused him harm by using unnecessary force during his detention. A claim of excessive force in the course of making an arrest may be brought as a claim under 42 U.S.C. § 1983. This claim is properly analyzed under the Fourth Amendment's objective reasonableness standard. Scott v. Harris, 550 U.S. 372, 381 (2007); Graham v. Connor, 490 U.S. 386 (1989). This assessment involves determining whether the force was objectively reasonable "in light of the facts and circumstances confronting [the officer], without regard to their underlying intent or motivation." Graham, 490 U.S. at 397. "Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Gregory v. County of Maui, 523 F.3d 1103, 1106 (9th Cir. 2008), quoting Graham v. Connor, 490 U.S. at 396. The factors the court may consider in this analysis are: 1) "the severity of the crime at issue"; 2) "whether a suspect poses an immediate threat to the safety of the officer or others"; and 3) whether the suspect "is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) ("[t]hese factors, however, are not exclusive. Rather, we examine the totality of the circumstances and consider `whatever specific factors may be appropriate in a particular case, whether or not listed in Graham'").
Finally, Plaintiff repeatedly complains that his due process rights were violated by the procedures utilized by Tulare County in seizing and ultimately euthanizing his animals. A procedural due process claim is cognizable in a Section 1983 case. "To obtain relief on a procedural due process claim, the plaintiff must establish the existence of `(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) lack of process.'" Stamas v. Cnty. of Madera, 795 F.Supp.2d 1047, 1077 (E.D. Cal. 2011), quoting Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008). "[P]rocedural due process claims do not `deal with the substance of the challenged decisions, but with the process by which they were reached'." Id., quoting Halverson v. Skagit Cnty., 42 F.3d 1257, 1260 (9th Cir. 1994). "The due process clause does not prohibit every deprivation by the state of an individual's property. Only those deprivations carried out without due process are actionable under 42 U.S.C. § 1983." Halverson, 42 F.3d at 1260. "`Ordinarily, due process of law requires [notice and] an opportunity for some kind of hearing prior to the deprivation of a significant property interest.'" Id.
The Court will provide Plaintiff a final opportunity to amend the Complaint to address the issues identified above. If Plaintiff chooses to file a Third Amended Complaint, it must bear the docket number assigned in this case and be labeled "Third Amended Complaint." As a general rule, an amended complaint supersedes any earlier complaints. Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) (noting that there may be limited exceptions to this rule on appeal). In other words, the amended complaint must be "complete in itself without reference to the prior or superseded pleading." Local Rule 220.
Because Rule 8(a) requires a short and plain statement of the claim, twenty (20) pages are sufficient for Plaintiff to identify his claims and set forth specific facts in support of those claims. In order to comply with this limitation, Plaintiff is directed to closely review the guidance given by the Court in this order and omit any non-actionable allegations and other irrelevant material from his amended complaint. Accordingly, Plaintiff's amended complaint may not exceed twenty pages in length. Failure to follow this directive may result in dismissal of this case.
For the reasons set forth above, Plaintiff's Second Amended Complaint (ECF No. 71) is DISMISSED WITH LEAVE TO AMEND. Plaintiff is instructed to consider the standards set forth in this Order and should only file a Third Amended Complaint if he believes his claims are cognizable. Any amended complaint shall be filed no later than
Failure to file Third Amended Complaint by the date specified will result in dismissal of this action.
IT IS SO ORDERED.
