(PC) Sierra v. Director of CDCR ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH ALAN SIERRA, No. 2: 16-cv-1067 MCE KJN P 12 Plaintiff, 13 v. ORDER 14 DIRECTOR OF DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a former state prisoner, proceeding pro se, with a civil rights action pursuant to 19 42 U.S.C. § 1983. On May 5, 2017, the court denied plaintiff’s application to proceed in forma 20 pauperis pursuant to 28 U.S.C. § 1915(g), and ordered plaintiff to pay the filing fee within thirty 21 days. (ECF No. 64.) Plaintiff appealed the May 5, 2017 order to the Ninth Circuit Court of 22 Appeals. (ECF No. 65.) 23 On March 5, 2021, the Ninth Circuit dismissed plaintiff’s appeal for failure to prosecute. 24 (ECF No. 82.) On March 9, 2021, the Ninth Circuit reinstated plaintiff’s appeal. (ECF No. 85.) 25 This order was docketed in this court on April 27, 2021. (Id.) 26 On April 27, 2021, the Ninth Circuit reversed the May 5, 2017 order and remanded this 27 matter. (ECF No. 87.) The Ninth Circuit found that plaintiff met the imminent danger exception 28 to section 1915(g). (Id.) The Ninth Circuit also found that section 1915(g) was no longer 1 applicable because plaintiff was released while the appeal was pending. (Id.) The Ninth Circuit 2 directed this court to “reconsider anew any IFP application.” (Id.) 3 On March 29, 2021, the undersigned ordered plaintiff to pay the filing fee within twenty- 4 one days. (ECF No. 83.) The undersigned was unaware of the Ninth Circuit’s March 9, 2021 5 order when he issued the March 29, 2021 order. Accordingly, the March 29, 2021 order is 6 vacated. Pursuant to the Ninth Circuit’s April 27, 2021 order, the undersigned herein addresses 7 plaintiff’s original in forma pauperis application and screens plaintiff’s amended complaint filed 8 December 16, 2016. (ECF No. 34.) 9 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 10 Accordingly, the request to proceed in forma pauperis is granted. 11 On December 16, 2016, plaintiff filed an amended complaint. (ECF No. 34.) On 12 December 16, 2016, plaintiff also filed a motion to add parties to the amended complaint. (ECF 13 No. 36.) The motion to add parties includes a points and authorities addressing plaintiff’s claims 14 against three new defendants not named in the December 16, 2016 amended complaint. This 15 points and authorities also does not address all of the claims raised against all defendants 16 identified in the December 16, 2016 amended complaint. 17 The court does not normally allow piecemeal amendments or piecemeal supplements to 18 complaints. Because an amended complaint supersedes and replaces the original complaint, an 19 amended complaint must stand on its own. See Local Rule 220; Ramirez v. County of San 20 Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the 21 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once 22 plaintiff files an amended complaint, the original pleading no longer serves any function in the 23 case. 24 It does not appear that plaintiff intends to abandon the claims and defendants addressed in 25 the amended complaint (ECF No. 34) but not addressed in the motion to add new parties (ECF 26 No. 36). Accordingly, plaintiff’s motion to add new parties is disregarded because it is a 27 piecemeal amendment in violation of Local Rule 220. Plaintiff is granted thirty days to file a 28 second amended complaint raising all claims against all defendants he intends to name. If 1 | plaintiff does not file a second amended complaint within thirty days, the undersigned will screen 2 || the amended complaint filed December 16, 2016 (ECF No. 34). In other words, if plaintiff does 3 || not file a second amended complaint, the undersigned will not consider the claims against the 4 | new defendants identified in plaintiff's December 16, 2016 motion to add new parties (ECF No. 5 | 36). 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. The March 29, 2021 order (ECF No. 83) is vacated; 8 2. Plaintiffs request for leave to proceed in forma pauperis is granted. 9 3. Plaintiffis granted thirty days from the date of this order to file a second amended 10 | complaint; if plaintiff does not file a second amended complaint within that time, the undersigned 11 | will screen the amended complaint filed December 16, 2016 (ECF No. 34). 12 || Dated: July 8, 2021 3 Aectl Aharon 14 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 15 16 17 || si1o67.0rd 18 19 20 21 22 23 24 25 26 27 28