(PC) Hernandez v. Marcelo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARINO ANTONIO HERNANDEZ, Case No. 1:19-cv-01219-NONE-JLT (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT 13 v. OR NOTIFY THE COURT OF HIS DESIRE TO PROCEED ONLY ON 14 J. MARCELO, et al., CLAIMS FOUND COGNIZABLE 15 Defendants. 21-DAY DEADLINE 16 17 On March 26, 2021, the Court granted Defendants’ motion to partially dismiss Plaintiff’s 18 complaint. (Doc. 46.) The Court dismissed, with leave to amend, Plaintiff’s official-capacity 19 claims under the Eighth Amendment, the Americans with Disabilities Act (ADA), and the 20 Rehabilitation Act. (Id. at 3.) The Court also dismissed, without leave to amend, Plaintiff’s 21 individual-capacity claims under the ADA and the Rehabilitation Act. (Id.) The Court allowed 22 Plaintiff’s individual-capacity claims under the Eighth Amendment (for deliberate indifference to 23 serious medical needs) to proceed. (Id.) 24 Based on the above, the Court will grant Plaintiff an opportunity to file a first amended 25 complaint curing the deficiencies in his pleading with respect to his official-capacity claims. 26 Alternatively, Plaintiff may file a notice with the Court that he wishes to proceed only on his 27 individual-capacity claims for deliberate indifference to serious medical needs under the Eighth Amendment. 1 Plaintiff is informed that an amended complaint supersedes the original complaint. Lacey 2 v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Thus, a first amended complaint must be 3 “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. The 4 Court provides Plaintiff with an opportunity to amend his complaint to cure the deficiencies 5 identified herein. However, Plaintiff may not change the nature of this suit by adding unrelated 6 claims in an amended complaint. Accordingly, the Court ORDERS: 7 1. Plaintiff is GRANTED leave to file a first amended complaint; 8 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and, 9 3. Within 21 days from the date of service of this order, Plaintiff shall file one of the 10 following items: 11 a. a first amended complaint curing the deficiencies identified herein and in the 12 Court’s findings and recommendations signed on October 14, 2020 (Doc. 35), 13 or 14 b. a notice that he does not wish to file a first amended complaint and instead 15 wishes to (1) proceed only on his individual-capacity claims for deliberate 16 indifference to serious medical needs and (2) dismiss his remaining claims. 17 If Plaintiff fails to comply with this order, the Court will recommend that this action 18 proceed only on the claims found cognizable and that all other claims be dismissed with 19 prejudice. 20 IT IS SO ORDERED. 21 22 Dated: March 27, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27