(PC)Jones v. Ramirez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES JONES, No. 2:20-cv-1984 AC P 12 Plaintiff, 13 v. ORDER 14 CURTIS ALLEN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1, 19 2. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1)(B). 21 Plaintiff has also filed a motion to amend the complaint. ECF No. 7. For the reasons 22 stated below, the motion to proceed in forma pauperis and the motion to amend will be granted. 23 Plaintiff will also be provided with specific directions about how file an amended complaint 24 properly. 25 I. IN FORMA PAUPERIS APPLICATION 26 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 27 1915(a). See ECF Nos. 2, 5. Accordingly, the request to proceed in forma pauperis will be 28 granted. 1 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 2 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 3 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 4 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 5 forward it to the Clerk of Court. Thereafter, plaintiff will be obligated for monthly payments of 6 twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 7 These payments will be forwarded by the appropriate agency to the Clerk of Court each time the 8 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 9 1915(b)(2). 10 II. MOTION TO AMEND 11 Plaintiff has moved to amend the complaint so that he may add another defendant to this 12 action. See ECF No. 7 at 1. No other information is provided. 13 The court is required to screen complaints brought by prisoners seeking relief against a 14 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 15 Because plaintiff filed the instant motion to amend within a reasonable period after he filed the 16 original complaint, the court will grant the motion to amend and screen the amended complaint 17 instead of the original. See generally Fed. R. Civ. P. 15(a)(2). The amended complaint, however, 18 must adhere to the guidelines below. 19 III. GUIDELINES FOR AMENDING THE COMPLAINT 20 The amended complaint will take the place of the original complaint. See Lacey v. 21 Maricopa Cty., 693 F.3d 896, 925 (2012) (stating amended complaint supersedes original 22 complaint). Any amended complaint should observe the following: 23 An amended complaint must identify as a defendant only persons who personally 24 participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson 25 v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 26 constitutional right if he does an act, participates in another's act or omits to perform an act he is 27 legally required to do that causes the alleged deprivation). 28 //// 1 An amended complaint must also contain a caption including the names of all 2 || defendants. Fed. R. Civ. P. 10(a). Plaintiff may not change the nature of this suit by alleging 3 || new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 4 Any amended complaint must be written or typed so that it is complete in itself without 5 || reference to any earlier filed complaint. See L.R. 220 (E.D. Cal. 2009). This is because an 6 || amended complaint supersedes any earlier filed complaint, and once an amended complaint is 7 | filed, the earlier filed complaint no longer serves any function in the case. See Loux v. Rhay, 375 8 || F.2d 55, 57 (9th Cir. 1967) (“The amended complaint supersedes the original, the latter being 9 || treated thereafter as non-existent.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 10 | F.3d 896 (012). 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The Clerk of Court shall send plaintiff a copy of the court’s Civil Rights Complaint 13 | By A Prisoner form; 14 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED; 15 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 16 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 17 || 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 18 || appropriate agency filed concurrently herewith; 19 4. Plaintiff’s motion to amend the complaint (ECF No. 7) is GRANTED, and 20 5. Within thirty days of the date of this order, plaintiff shall file a first amended 21 || complaint. Failure to file an amended complaint within the time allotted may result in the 22 || dismissal of this action for failure to prosecute. 23 || DATED: December 2, 2020 ~ Cte. 24 ALLISONCLAIRE. 25 UNITED STATES MAGISTRATE JUDGE 26 27 28