(PC) McClintock v. Valencia ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN SCOTT McCLINTOCK, No. 2:21-cv-0850-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 G. VALENCIA, 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 addition to filing a complaint and an “addendum” thereto (ECF Nos. 1 & 4), he 19 has also filed an application to proceed in forma pauperis (ECF No. 2). 20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Screening Order 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 Plaintiff has filed a complaint followed by an “addendum” to add a third claim to his 5 complaint. See ECF Nos. 1 & 4. Filing separate documents that are intended to be read together 6 as a single complaint, however, is not the proper procedure for amending a complaint. To add, 7 omit, or correct information in the operative complaint, plaintiff must file an amended complaint 8 that is complete within itself. This is because an amended complaint supersedes any earlier filed 9 complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves 10 any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the 11 “‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) 12 (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). Plaintiff’s complaint (and the intended 13 amendments thereto) is dismissed with leave to amend in accordance with the requirements set 14 forth in this order. 15 Plaintiff is cautioned that any amended complaint must identify as a defendant only 16 persons who personally participated in a substantial way in depriving him of his constitutional 17 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 18 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 19 perform an act he is legally required to do that causes the alleged deprivation). 20 The amended complaint must also contain a caption including the names of all defendants. 21 Fed. R. Civ. P. 10(a). 22 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 23 George, 507 F.3d at 607. Nor, as he was warned above, may he bring multiple, unrelated claims 24 against more than one defendant. Id. 25 Any amended complaint should be as concise as possible in fulfilling the above 26 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 27 background which has no bearing on his legal claims. He should also take pains to ensure that his 28 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 1 | and organization. Plaintiff should carefully consider whether each of the defendants he names 2 || actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 3 || which plaintiff names dozens of defendants will not be looked upon favorably by the court. 4 Conclusion 5 Accordingly, it is ORDERED that: 6 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) is GRANTED; 7 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 8 accordance with the notice to the California Department of Corrections and 9 Rehabilitation filed concurrently herewith; 10 3. Plaintiffs complaint and “addendum” thereto (ECF Nos. 1 & 4) are dismissed with 11 leave to amend within 30 days from the date of service of this order; 12 4. Alternatively, plaintiff may within 30 days from the date of service of this order notify 13 the court that he elects to proceed on the original complaint without the addendum in 14 which case the court will screen the original complaint only; and 15 5. Failure to comply with any part of this this order may result in dismissal of this action. 16 | DATED: June 14, 2021. 17 Eg Vout 4 hub LH A 18 EDMUND F. BRENNAN 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28