(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 FINDING DEFENDANT RAVI’S MOTION TO DISMISS AND A MOTION TO 13 v. STRIKE MOOTED BY SECOND AMENDED COMPLAINT 14 RAVI, (Doc. Nos. 16, 19) 15 Defendant. ORDER TO CLERK TO CORRECT DOCKET 16 17 18 19 Plaintiff Israel Rios, a state prisoner, initiated this action on July 24, 2019 by filing a pro 20 se civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff is proceeding on his 21 first amended complaint (“FAC”) as screened by the former magistrate judge. (Doc. Nos. 8, 12). 22 The FAC names Defendant Ravi as the sole defendant. (Doc. No. 8). In response to the FAC, 23 Defendant Ravi filed a motion to dismiss on July 7, 2020 (Doc. No. 16) and a motion to strike the 24 portion of the FAC seeking punitive and exemplary damages on July 8, 2020 (Doc. No. 19). On 25 August 13, 2021, after obtaining leave, Plaintiff filed a second amended complaint (“SAC”). 26 (Doc. No. 26). 27 The SAC is the operative pleading. An earlier complaint “no longer performs any 28 function” after an amended complaint is filed. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 1 | Cir.1992). The SAC does not name Defendant Ravi and instead names Dr. Chinyere Nyenke, 2 | M.D. as the sole defendant. (Doc. No. 26). A motion seeking to dismiss an earlier complaint is 3 | moot upon the amended complaint’s filing. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 4 | 1008 (9th Cir. 2015). An amended complaint similarly moots a motion to strike an earlier 5 | complaint. Sharma v. City of Redding, No. 217CV0487MCEACPS, 2017 WL 2346132, at *1 6 | (E.D. Cal. May 30, 2017). 7 Thus, the Court finds Defendant Ravi’s motion to dismiss and motion strike mooted by 8 | the SAC. The Court will screen Plaintiff's SAC pursuant to 28 U.S.C. § 1915A before directing 9 | service upon Defendant Dr. Chinyere Nyenke, M.D. 10 Accordingly, it is ORDERED: 11 1. Defendant Ravi’s motion to dismiss (Doc. No. 16) and motion to strike (Doc. No. 19) 12 are DENIED as moot. 13 2. The Clerk of Court is directed to correct the docket to reflect the sole Defendant 14 | named in Plaintiff's second amended complaint (Doc. No. 26) as Chinyere Nyenke, M.D. and 15 || terminate Defendant Ravi from the docket. 16 '7 | Dated: _ August 19, 2021 Mihaw. Wh. foareh Zaskth 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28