(PC) Burghardt v. Borges ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL BURGHARDT, 1:17-cv-01433-AWI-GSA-PC 12 Plaintiff, ORDER FOR PLAINTIFF TO FILE SECOND 13 v. AMENDED COMPLAINT NOT EXCEEDING 25 PAGES, WITHIN THIRTY DAYS 14 L. BORGES, et al., 15 Defendants. 16 17 18 19 20 21 22 23 Darryl Burghardt (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 24 with this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2017, Plaintiff filed 25 the Complaint commencing this action. (ECF No. 1.) 26 On August 20, 2020, the court issued an order dismissing Plaintiff’s claims against 27 defendants Borges, Renteria, Montoya, Osuma, Gomez, and Gonzales from this action for failure 28 to state a claim, with leave to amend; and dismissing all other claims from this action as unrelated 1 claims under Rule 18(a), without prejudice to filing new cases to bring those claims. (ECF No. 2 12.) Plaintiff shall be granted thirty days in which to file the Second Amended Complaint curing 3 the deficiencies in his claims identified in the findings and recommendations entered on July 18, 4 2019 (ECF No. 18). Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 5 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 6 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. 7 Iqbal, 556 U.S. at 678; Jones, 297 F.3d at 934. Plaintiff must set forth “sufficient factual matter 8 . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 (quoting Twombly, 550 U.S. at 9 555). Twenty-five pages is sufficient for Plaintiff to set forth his allegations and claims. If 10 Plaintiff’s Second Amended Complaint exceeds the 25-page limitation, including any 11 exhibits, the court shall strike the Second Amended Complaint and recommend that this 12 case be dismissed in its entirety. 13 Plaintiff must demonstrate in his amended complaint how the conditions complained of 14 have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th 15 Cir. 1980). The amended complaint must allege in specific terms how each named defendant is 16 involved. 17 Plaintiff may not change the nature of this suit by adding unrelated claims in his amended 18 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 19 Also, Plaintiff is not granted leave to add allegations to the amended complaint of events that 20 occurred after October 25, 2017, the date the original Complaint was filed. 21 As a general rule, an amended complaint supersedes the original complaint. See Loux v. 22 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original 23 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 24 an original complaint, each claim and the involvement of each defendant must be sufficiently 25 alleged. 26 The Second Amended Complaint should be clearly and boldly titled “SECOND 27 AMENDED COMPLAINT,” refer to the appropriate case number, and be an original signed 28 under penalty of perjury. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 3 2. Within thirty days from the date of service of this order, Plaintiff shall file a 4 Second Amended Complaint not exceeding 25 pages, including any exhibits, 5 curing the deficiencies in the First Amended Complaint identified by the court; 6 3. If Plaintiff’s Second Amended Complaint exceeds the 25-page limitation, which 7 includes any exhibits, the court shall strike the Second Amended Complaint and 8 recommend that this case be dismissed in its entirety; 9 4. Plaintiff shall caption the amended complaint “Second Amended Complaint” and 10 refer to the case number 1:17-cv-01433-AWI-GSA-PC; and 11 5. Plaintiff’s failure to comply with this order shall result in a recommendation that 12 this action be dismissed for failure to state a claim. 13 IT IS SO ORDERED. 14 15 Dated: August 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28