(PC) Daniels v. Baer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN GERALD DANIELS III, 1:19-cv-01801-AWI-GSA-PC 12 Plaintiff, ORDER ADDRESSING PLAINTIFF’S MOTION TO AMEND 13 vs. (ECF No. 24.) 14 BAER, et al., ORDER INFORMING PLAINTIFF HE HAS LEAVE TO AMEND HIS 15 Defendants. 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 23 24 25 I. BACKGROUND 26 Norman Gerald Daniels III (“Plaintiff”) is a state prisoner proceeding pro se with this 27 civil rights action under 42 U.S.C. § 1983. This action was initiated by civil complaint filed by 28 Plaintiff in the Kings County Superior Court on August 19, 2019 (Case #19CV-0717). On 1 December 23, 2019, defendants Baer, Martin, Melina, and Smith (“Defendants”) removed the 2 case to federal court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441. 3 (ECF No. 1.) 4 On February 19, 2021, Plaintiff filed a motion to amend the complaint. (ECF No. 24.) 5 II. MOTION TO AMEND – FED. R. CIV. P. 15(a) 6 Plaintiff requests leave to “re-write or amend the current complaint.” (ECF No. 24 at 7 1:13-15.) Plaintiff also requests that the amended complaint “not be counted as a ‘first amended 8 complaint,’ but a re-write of the complaint.” Id. at 2:24-25.) 9 Plaintiff’s request to call the amended complaint a “re-write of the complaint” instead of 10 “a first amended complaint” is denied. The court finds no good cause to re-name the First 11 Amended Complaint, and Plaintiff has not provided any. Therefore, if Plaintiff chooses to file 12 an amended complaint at this stage of the proceedings, it shall be called the First Amended 13 Complaint. 14 Plaintiff may file an amended complaint at this stage of the proceedings without leave of 15 court. Under Rule 15(a) of the Federal Rule of Civil Procedure, a party may amend the party’s 16 pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, 17 a party may amend only by leave of the court or by written consent of the adverse party, and 18 leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Here, because Plaintiff 19 has not previously amended the Complaint and no responsive pleading has been served in this 20 action, Plaintiff has leave to file an amended complaint as a matter of course. Plaintiff shall be 21 granted thirty days in which to file a First Amended Complaint, making the needed changes. 22 Plaintiff must demonstrate in his amended complaint how the conditions complained of 23 have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 24 227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named 25 defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some 26 affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo 27 v. Goode, 423 U.S. 36 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 28 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 1 As a general rule, an amended complaint supersedes the original complaint. See Loux v. 2 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original 3 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 4 an original complaint, each claim and the involvement of each defendant must be sufficiently 5 alleged. 6 Plaintiff should note that although he has the opportunity to amend, it is not for the 7 purpose of adding allegations of events occurring after August 19, 2019, the date the initial 8 complaint was filed. In addition, Plaintiff may not change the nature of this suit by adding 9 new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th 10 Cir. 2007) (no “buckshot” complaints) (emphasis added). 11 The First Amended Complaint should be clearly and boldly titled “FIRST AMENDED 12 COMPLAINT,” refer to the appropriate case number, and be an original signed under penalty of 13 perjury. 14 III. CONCLUSION 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s motion to amend, filed on December 23, 2019, is RESOLVED; 17 2. Plaintiff is informed that he may file an amended complaint at this stage of the 18 proceedings without leave of court, pursuant to Rule 15(a) of the Federal Rules of 19 Civil Procedure; 20 3. Plaintiff is granted thirty (30) days from the date of service of this order, in which 21 to file a First Amended Complaint as instructed by this order, using the court’s 22 form; 23 4. The First Amended Complaint should be clearly and boldly titled “First Amended 24 Complaint,” refer to case number 1:19-cv-01801-AWI-GSA-PC, and be an 25 original signed under penalty of perjury; 26 6. If Plaintiff fails to file an amended complaint within the thirty-day time period, 27 the court shall proceed with Plaintiff’s original complaint filed on August 19, 28 2019; 1 7. The Clerk of Court shall send one § 1983 civil rights complaint form to Plaintiff; 2 and 3 8. Plaintiff is warned that the failure to comply with this order may result in the 4 dismissal of this action for failure to obey a court order. 5 IT IS SO ORDERED. 6 7 Dated: February 23, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28