(PC) Sherrod v. Unknown ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT DENNIS SHERROD, 1:19-cv-00839-DAD-GSA-PC 12 Plaintiff, ORDER ADDRESSING PLAINTIFF’S MOTION TO AMEND 13 vs. (ECF No. 9.) 14 UNKNOWN, ORDER INFORMING PLAINTIFF HE HAS LEAVE TO AMEND THE 15 Defendant. COMPLAINT ONCE AS A MATTER OF COURSE 16 THIRTY DAY DEADLINE TO FILE 17 FIRST AMENDED COMPLAINT 18 ORDER FOR CLERK TO SEND COMPLAINT FORM TO PLAINTIFF 19 20 21 22 I. BACKGROUND 23 Albert Dennis Sherrod (“Plaintiff”) is a state prisoner proceeding pro se and in forma 24 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the 25 Complaint commencing this action on June 10, 2019, in the Sacramento Division of the United 26 States District Court for the Eastern District of California. (ECF No. 1.) On June 14, 2019, the 27 case was transferred to this court. (ECF No. 4.) 28 On August 7, 2019, Plaintiff filed a motion to amend the Complaint. (ECF No. 9.) 1 II. MOTION TO AMEND – FED. R. CIV. P. 15(a) 2 Plaintiff proposes requests to add new information, which he has submitted with the 3 motion to amend, to the Complaint. To the extent that Plaintiff wishes to amend the Complaint 4 by adding information to the Complaint after it has been filed, Plaintiff may not amend the 5 Complaint in this manner. Under Local Rule 220,1 Plaintiff may not amend the Complaint by 6 adding information piecemeal after the Complaint has been filed. To add information or 7 correct an error in the Complaint, Plaintiff must file a new First Amended Complaint which is 8 complete within itself. 9 Plaintiff may file an amended complaint at this stage of the proceedings without leave 10 of court. Under Rule 15(a) of the Federal Rule of Civil Procedure, a party may amend the 11 party’s pleading once as a matter of course at any time before a responsive pleading is served. 12 Otherwise, a party may amend only by leave of the court or by written consent of the adverse 13 party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Here, 14 because Plaintiff has not previously amended the Complaint and no responsive pleading has 15 been served in this action, Plaintiff has leave to file an amended complaint as a matter of 16 course. Plaintiff shall be granted thirty days in which to file a First Amended Complaint, 17 making the needed changes. 18 Plaintiff must demonstrate in his amended complaint how the conditions complained of 19 have resulted in a deprivation of Plaintiff=s constitutional rights. See Ellis v. Cassidy, 625 F.2d 20 227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named 21 defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some 22 affirmative link or connection between a defendant’s actions and the claimed deprivation. 23 24 1 Local Rule 220 provides, in part: 25 Unless prior approval to the contrary is obtained from the Court, every pleading to 26 which an amendment or supplement is permitted as a matter of right or has been allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior 27 or superseded pleading. No pleading shall be deemed amended or supplemented until this Rule has been complied with. All changed pleadings shall contain copies of all exhibits referred to in 28 the changed pleading. 1 Rizzo v. Goode, 423 U.S. 36 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 2 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 As a general rule, an amended complaint supersedes the original complaint. See Loux 4 v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original 5 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 6 an original complaint, each claim and the involvement of each defendant must be sufficiently 7 alleged. 8 Plaintiff should note that although he has the opportunity to amend, it is not for the 9 purpose of adding allegations of events occurring after June 10, 2019, the date the initial 10 Complaint was filed. Also, Plaintiff may not change the nature of this suit by adding new, 11 unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 12 2007) (no “buckshot” complaints). 13 The First Amended Complaint should be clearly and boldly titled “FIRST AMENDED 14 COMPLAINT,” refer to the appropriate case number, and be an original signed under penalty 15 of perjury. 16 III. CONCLUSION 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s motion to amend, filed on August 7 2019, is RESOLVED; 19 2. Plaintiff is granted thirty (30) days from the date of service of this order, in 20 which to file a First Amended Complaint as instructed by this order, using the 21 court’s form; 22 3. The First Amended Complaint should be clearly and boldly titled “First 23 Amended Complaint,” refer to case number 1:19-cv-00839-DAD-GSA-PC, and 24 be an original signed under penalty of perjury; 25 4. The Clerk of Court shall send one § 1983 civil rights complaint form to Plaintiff; 26 and 27 /// 28 /// 1 5. Plaintiff is warned that the failure to comply with this order may result in the 2 dismissal of this action for failure to obey a court order. 3 IT IS SO ORDERED. 4 5 Dated: September 16, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28