(PC) Reid v. United States of America ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GORDON C. REID, Case No. 1:14-cv-01163-NONE-JLT (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR MISCELLANEOUS 13 v. RELIEF 14 UNITED STATES OF AMERICA, et al., (Doc. 88) 15 Defendants. ORDER DIRECTING PLAINTIFF TO FILE A SECOND AMENDED 16 COMPLAINT OR A NOTICE OF HIS DESIRE TO PROCEED ONLY ON 17 EIGHTH AMENDMENT CLAIMS 18 30-DAY DEADLINE 19 Plaintiff brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. 20 Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act. On July 28, 2015, the 21 Court screened Plaintiff’s first amended complaint (Doc. 28) and found that it stated a cognizable 22 First Amendment retaliation claim under Bivens, but that its FTCA claims and Eighth 23 Amendment excessive force and conditions of confinement claims were not cognizable. (Doc. 24 31.) On October 28, 2016, the Court dismissed the FTCA and Eighth Amendment claims. (Doc. 25 45.) 26 On February 2, 2018, Defendants filed a motion to dismiss the remaining, First 27 Amendment retaliation claim. (Doc. 71.) The Court granted the motion and dismissed the claim 1 On September 2, 2020, the Ninth Circuit Court of Appeals affirmed the dismissal of the 2 First Amendment retaliation claims, but it reversed the dismissals of the excessive force, 3 conditions of confinement, and FTCA claims. (Doc. 84.) The judgment took effect on October 26, 4 2020. (Doc. 87.) The Ninth Circuit noted that this Court had dismissed the FTCA claims for 5 Plaintiff’s failure to plead exhaustion, but that, on appeal, Plaintiff asserted that he can show that 6 he exhausted the FTCA claims. (Doc. 84 at 7.) The Ninth Circuit, therefore, remanded the FTCA 7 claims to this Court to determine if amendment would be futile. (Id.) Plaintiff now requests a 8 “post-appeal procedural order” regarding this action. (Doc. 88.) 9 The Court does not find that amendment would be futile. Therefore, the Court will grant 10 Plaintiff leave to file an amended complaint to properly plead exhaustion of his FTCA claims. 11 The Court reminds Plaintiff that an amended complaint supersedes the original complaint and 12 prior amendments. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Thus, a second 13 amended complaint must be “complete in itself without reference to the prior or superseded 14 pleading.” Local Rule 220. The Court provides Plaintiff with an opportunity to amend his 15 complaint to cure the deficiencies identified herein. However, he may not change the nature of 16 this suit by adding unrelated claims in an amended complaint. Accordingly, the Court ORDERS: 17 1. Plaintiff’s motion for a “post-appeal procedural order” (Doc. 88) is GRANTED; 18 2. Plaintiff is GRANTED leave to file a second amended complaint; 19 3. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and, 20 4. Within 30 days of the date of service of this order, Plaintiff shall file one of the 21 following items: 22 a. a second amended complaint curing the deficiencies in his pleading, or 23 /// 24 /// 25 /// 26 /// 27 /// 1 b. a notice that he wishes to (1) proceed only on his Eighth Amendment excessive 2 force and conditions of confinement claims under Bivens and (2) dismiss his 3 FTCA claims. 4 IT IS SO ORDERED. 5 6 Dated: January 5, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27