(PC) Rios v. Spearman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISRAEL RIOS, Case No. 1:19-cv-01009-DAD-HBK 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO AMEND AND STRIKING PROPOSED 13 v. SECOND AMENDED COMPLAINT 14 RAVI, (Doc. Nos. 23, 24) 15 Defendant. TWENTY-ONE DAY DEADLINE 16 17 18 This matter comes before the Court upon Plaintiff’s motion to amend to amend his 19 operative complaint, filed on July 21, 2021. (Doc. No. 23, Motion). Plaintiff accompanied his 20 Motion with a proposed second amended complaint. (Doc. No. 24). Plaintiff Israel Rios, a state 21 prisoner, initiated this action on July 24, 2019 by filing a pro se civil rights complaint under 42 22 U.S.C. § 1983. (Doc. No. 1). Plaintiff is proceeding on his amended complaint as screened by 23 the former magistrate judge. (Doc. Nos. 8, 12). Defendant Ravi moved on July 7, 2020 to 24 dismiss Plaintiff’s amended complaint, which remains pending. (Doc. No. 16). 25 Because Plaintiff has previously filed an amended complaint, Plaintiff may not amend as a 26 right. Fed. R. Civ. P. 15(a)(1). Instead, Plaintiff may amend his pleading “only with the 27 opposing party’s written consent or the court’s leave” and the “court should freely give leave 28 when justice so requires.” Fed. R. Civ. P. 15(a)(2). 1 Plaintiff seeks to an amended his operative complaint because “new information” leads 2 | Plaintiff to believe that Dr. Nyenke, not Dr. Ravi, the named defendant, is responsible for the 3 | claims in his complaint. (Doc. No. 23). Because leave should freely be granted and permitting 4 | Plaintiff to prosecute his claim against the correct named defendant would further justice, the 5 | Court will permit Plaintiff to file a second amended complaint. 6 The Court, however, cannot accept Plaintiff's proposed second amended complaint 7 | because it is deficient. (Doc. No. 24). It is not signed under penalty of perjury in violation of the 8 | Court’s procedural rules. Fed. R. Civ. P. 11(a); Local Rule 131(b). Also, despite Plaintiff 9 | crossing out Ravi, M.D. and handwriting in Dr. Nyenke as the defendant on the title page and 10 | under the section titled “Defendants,” Plaintiff continues to name Ravi in the facts and in the 11 | relief section of the proposed complaint. (Ud. at 1, 4,5). The Court will therefore direct the Clerk 12 | to strike Plaintiffs proposed second amended complaint but will permit Plaintiff twenty-one days 13 | to file a corrected free-standing second amended complaint. 14 The second amended complaint will supersede all previous complaints and become the 15 | operative pleading. See Lacey v. Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en 16 || banc); Local Rule 220. It must be complete without reference to any prior complaint or any 17 | superseded pleading. In the second amended complaint, the claim and the involvement of the 18 || defendant must be sufficiently alleged. The complaint should be signed and titled “Second 19 | Amended Complaint” in clear, bold type, and contain the above case number. 20 Accordingly, it is ORDERED: 21 1. Plaintiff’s motion to amend his complaint (Doc. No. 23) is GRANTED and Plaintiff 22 || shall file his second amended complaint no later than twenty-one (21) days. 23 2. The Clerk of Court shall strike Plaintiff's proposed amended complaint (Doc. No. 24) 24 | and provide Plaintiff with a blank copy of the Court’s approved prisoner complaint form. 25 °° | Dated: _ July 26, 2021 Wiha. Th. fareh fackte 27 HELENA M. BARCH-KUCHTA 38 UNITED STATES MAGISTRATE JUDGE