(PC) Cox v. North Kern State Prison Officials ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONNELL COX, Case No. 1:21-cv-00860-NONE-BAM (PC) 12 Plaintiff, ORDER GRANTING MOTION TO AMEND COMPLAINT 13 v. (ECF No. 13) 14 NORTH KERN STATE PRISON ORDER VACATING FINDINGS AND OFFICIALS, RECOMMENDATIONS TO DISMISS 15 ACTION, WITHOUT PREJUDICE, FOR Defendant. FAILURE TO OBEY A COURT ORDER 16 AND FAILURE TO PROSECUTE (ECF No. 12) 17 THIRTY (30) DAY DEADLINE 18 19 Plaintiff Donnell Cox (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 21 On June 15, 2021, the Court granted Plaintiff’s motion to amend the complaint and 22 ordered Plaintiff to file a first amended complaint within thirty (30) days. (ECF No. 7.) 23 Following Plaintiff’s failure to file a first amended complaint, the Court issued findings and 24 recommendations on August 2, 2021 to dismiss this action, without prejudice, due to Plaintiff’s 25 failure to obey a court order and failure to prosecute. (ECF No. 12.) Those findings and 26 recommendations are currently pending. 27 On August 11, 2021, Plaintiff filed a notice of change of address and a motion to amend 28 the complaint. (ECF No. 13.) As in his first motion to amend, Plaintiff merely includes a list of 1 names of individuals he would like to add as defendants in this action. (See ECF No. 4.) 2 As it appears Plaintiff is still involved in pursuing this lawsuit, the Court will grant 3 Plaintiff’s request to file an amended complaint adding defendants to this action. Accordingly, 4 the Court finds it appropriate to vacate the pending findings and recommendations, issued on 5 August 2, 2021. (ECF No. 30.) After Plaintiff files the first amended complaint, it will be 6 screened in due course. 7 Plaintiff’s first amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state 8 what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, 9 Iqbal, 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be 10 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 11 (citations omitted). 12 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 13 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 14 “buckshot” complaints). 15 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 16 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 17 complaint must be “complete in itself without reference to the prior or superseded pleading.” 18 Local Rule 220. This includes any exhibits or attachments Plaintiff wishes to incorporate by 19 reference. 20 Plaintiff’s first amended complaint must include factual allegations against the new 21 and any original defendants Plaintiff wishes to include in this lawsuit. Plaintiff may not 22 simply submit another list of names of individuals he wants to sue. The Clerk of the Court 23 will provide a complaint form Plaintiff may use for his first amended complaint. 24 Accordingly, IT IS HEREBY ORDERED as follows: 25 1. Plaintiff’s motion for leave to amend, (ECF No. 13), is GRANTED; 26 a. Plaintiff is granted thirty (30) days from the date of service of this order in which 27 to file a first amended complaint; 28 b. The Clerk’s Office shall send Plaintiff a complaint form; and 1 c. If Plaintiff fails to file a first amended complaint in compliance with this 2 order, this action will be dismissed for failure to prosecute and failure to obey 3 a court order; and 4 2. The findings and recommendations issued on August 2, 2021, (ECF No. 12), are 5 VACATED. 6 IT IS SO ORDERED. 7 8 Dated: August 17, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28