(PC) Hammler v. Cota ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 2:19-cv-1423-JAM-EFB P 12 Plaintiff, 13 v. ORDER 14 E. COTA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. In accordance with the order filed March 24, 2020, plaintiff may either proceed 19 with his potentially cognizable First Amendment retaliation claims against defendants Cota, 20 Burnes, Hubbard, Case, and Salcedo only or he may amend his complaint to attempt to cure the 21 defects in the claims that were dismissed with leave to amend, namely: (1) plaintiff’s substantive 22 First Amendment claims against Hubbard for preventing him from speaking with a psychologist 23 and against Tumacder; (2) plaintiff’s First Amendment retaliation claims against Mccarvel, 24 Tumacder, Garza, and Rodriguez; and (3) plaintiff’s substantive due process, procedural due 25 process, equal protection, and “deliberate indifference” claims. He may not, however, change the 26 nature of this suit by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 27 2007). Moreover, plaintiff is not obligated to amend his complaint. 28 1 If plaintiff chooses to file an amended complaint, he should note that any amended 2 || complaint must identify as a defendant only persons who personally participated in a substantial 3 || way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th 4 | Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 5 || participates in another’s act or omits to perform an act he is legally required to do that causes the 6 || alleged deprivation). 7 Further, any amended complaint must be written or typed so that it so that it is complete in 8 || itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an 9 | amended complaint supersedes any earlier filed complaint, and once an amended complaint is 10 || filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. 11 | Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, 12 | the latter being treated thereafter as non-existent.’’’) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th 13 | Cir. 1967)). 14 Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil 15 || Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 16 | See E.D. Cal. L.R. 110. 17 Accordingly, it is ORDERED that: 18 1. Within thirty days plaintiff shall return the notice below advising the court whether 19 he elects to proceed with the potentially cognizable claims or file an amended 20 complaint. If the former option is selected and returned, the court will enter an 21 order directing service at that time; and 22 2. Failure to comply with any part of this this order may result in dismissal of this 23 action. 24 || DATED: April 3, 2020. tid, PDEA 25 EDMUND F. BRENNAN 06 UNITED STATES MAGISTRATE JUDGE 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ALLEN HAMMLER, No. 2:19-cv-1423-JAM-EFB P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 E.COTA, et al., 14 Defendants. 15 16 In accordance with the court’s order, plaintiff hereby elects to: 17 18 (1) ______ proceed only with the potentially cognizable First Amendment retaliation 19 claims against defendants Cota, Burnes, Hubbard, Case, and Salcedo. 20 OR 21 (2) ______ delay serving any defendant and files an amended complaint. 22 23 _________________________________ 24 Plaintiff 25 Dated: 26 27 28