(PS) Oliver v. Shelton ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARON MICHAEL OLIVER, No. 2:18-CV-1809-KJM-DMC 12 Plaintiff, 13 v. ORDER 14 MELL,1 15 Defendant. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. This action proceeds 18 on Plaintiff’s third amended complaint filed on February 1, 2020. See ECF No. 59. Plaintiff no 19 longer names as defendants T. Hatley or D. Shelton. See id. 20 / / / 21 / / / 22 1 Defendant has been variously named throughout this action. In the original 23 complaint, Plaintiff listed “Sgt. Mel.” ECF No. 1, pg. 1. In his answer to the original complaint, Defendant states his name is “David Mell.” ECF No. 18, pg. 1. In his first and second amended 24 complaint, Plaintiff again lists Defendant’s name as “Sgt. Mel.” ECF Nos. 34, pg. 1, and 36, pg. 1. In his third amended complaint, Plaintiff names the defendant as “Sgt. David Melboure.” ECF 25 No. 40, pg. 1. In the operative amended complaint, filed on February 1, 2021, pursuant to the District Judge’s January 21, 2021, order, Plaintiff states the only named defendant is “David 26 Melborue.” ECF No. 59, pg. 1. Defendant’s answer to the operative amended complaint states his name is “David Mell.” ECF No. 60, pg. 1. The Court will presume, until informed by 27 Plaintiff otherwise, that his various spellings refer to the same individual – David Mell. The Clerk of the Court will be directed to update the docket to reflect the spelling of Defendant’s 28 name as indicated in his most recent answer at ECF No. 60. 1 As a general rule, an amended complaint supersedes the original complaint. See 2 | Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the 3 | complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's amended 4 | complaint complete. See Local Rule 220. An amended complaint must be complete in itself 5 | without reference to any prior pleading. See id. Here, the third amended complaint no longer 6 | names as defendants T. Hatley or D. Shelton. Any claims Plaintiff had previously asserted 7 | against these individuals are, therefore, abandoned. This action shall proceed on the third 8 | amended complaint against Defendant Mell only. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The Clerk of the Court is directed to terminate “T. Hatley,” “Trevor 11 | Hatley,” “D. Shelton,” and “Duane Shelton” as defendants to this action because they are no 12 | longer named in the operative amended complaint; 13 2. The Clerk of the Court is directed to update the docket to reflect that this 14 | action proceeds against Defendant “David Mell” only; and 15 3, The motion to dismiss, ECF No. 61, filed by T. Hatley and D. Shelton is 16 || denied as unnecessary because Plaintiff no longer names those individuals as defendants to this 17 || action. 18 19 20 | Dated: February 25, 2021 1 DENNIS M. COTA 27 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28