(PC) Maldonado v. State of CA ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 BILLY RAE SHANEE MALDONADO, Case No. 2:21-cv-02172-KJM-JDP (PC) 10 Plaintiff, ORDER THAT PLAINTIFF: 11 v. (1) STAND BY HIS COMPLAINT SUBJECT TO A 12 STATE OF CALIFORNIA, et al., RECOMMENDATION THAT HIS APPLICATION TO PROCEED IN 13 Defendants. FORMA PAUPERIS BE DENIED, OR 14 (2) FILE AN AMENDED COMPLAINT WHOSE 15 ALLEGATIONS MAKE A SHOWING OF IMMINENT DANGER 16 ECF No. 1 17 THIRTY-DAY DEADLINE 18 19 20 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, 21 ECF No. 2. He is, however, a “three-striker” within the meaning of Title 28 U.S.C. § 1915(g). 22 He has, in other words, filed three cases that have been dismissed for failure to state a claim. 23 Plaintiff has filed at least three cases that have been dismissed for failure to state a claim: 24 (1) Maldonado v. Yates, No. 1:11-cv-01735-LJO-GSA (E.D. Cal. Jun. 13, 2013); 25 (2) Maldonado v. Trimble, No. 1:11-cv-02160-LJO-DLB (E.D. Cal. Apr. 19, 2013); 26 (3) Maldonado v. Yates, No. 1:11-cv-01885-AWI-JLT (E.D. Cal. Jan. 17, 2014). 27 28 1 Plaintiff will still be allowed to proceed in forma pauperis if he is in imminent danger of 2 | serious physical injury. The allegations in his complaint, however, do not make that showing. I 3 | cannot make out the substance of plaintiff's allegations because his handwriting 1s illegibly dense. 4 | Thus, I cannot conclude that plaintiff is imminent danger. I will allow him to file an amended 5 | complaint that legibly describes his claims. I will defer ruling on plaintiffs application to 6 | proceed in forma pauperis until either he files an amended complaint or the deadline for doing so 7 | has passed. 8 If plaintiff decides to file an amended complaint, the amended complaint will supersede 9 | thecurrent complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 10 | banc). This means that the amended complaint will need to be complete on its face without 11 || reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 12 | filed, the current complaint no longer serves any function. Therefore, in an amended complaint, 13 | as in an original complaint, plaintiff will need to assert each claim and allege each defendant’s 14 | involvement in sufficient detail. The amended complaint should be titled “First Amended 15 | Complaint” and refer to the appropriate case number. 16 Accordingly, it is ORDERED that: 17 1. Within thirty days from the service of this order, plaintiff must either file an 18 | amended complaint or advise the court he wishes to stand by his current complaint. If he selects 19 | the latter option, I will recommend that his application to proceed in forma pauperis be denied 20 | and that he be made to pay the filing fee before this action can proceed. 21 2. The Clerk of Court is directed to send plaintiff a complaint form. 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ April 25, 2022 □□ 25 JEREMY D,. PETERSON 26 UNITED STATES MAGISTRATE JUDGE 27 28