(PC) Ellis v. County of Kern ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES ELLIS, Case No. 1:22-cv-00436-ADA-BAM (PC) 12 Plaintiff, ORDER REGARDING DISTRICT JUDGE’S ORDER GRANTING PLAINTIFF LEAVE 13 v. TO FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF 14 COUNTY OF KERN, et al., WILLINGNESS TO PROCEED ON COGNIZABLE CLAIMS 15 Defendants. (ECF No. 12) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Charles Ellis (“Plaintiff”) is a county jail inmate proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 20 On September 18, 2023, the assigned District Judge issued an order adopting, in part, the 21 May 4, 2022 findings and recommendations regarding Plaintiff’s first amended complaint. (ECF 22 No. 12.) Within thirty (30) days, the District Judge directed Plaintiff to either: (1) file an 23 amended complaint indicating whether he intends to bring a Fourth Amendment claim and the 24 Defendants against whom he intends to bring that claim; or (2) file a notice of intent to proceed 25 on only the Fourteenth Amendment excessive force and denial of medical care claims identified 26 in the findings and recommendations. (Id.) 27 /// 28 1 Pursuant to that order, Plaintiff is reminded that if he does not wish to file a second 2 amended complaint and he is agreeable to proceeding only on the cognizable claims identified by 3 the Court’s May 4, 2022 findings and recommendations, he may file a notice informing the Court 4 that he does not intend to amend, and he is willing to proceed only on his cognizable claims as 5 alleged in the first amended complaint. The Court will then recommend that the remaining 6 claims be dismissed from this action, and then initiate the process for service of the complaint. 7 If Plaintiff wishes to file a second amended complaint, any such amended complaint 8 should be brief, Fed. R. Civ. P. 8(a), but it must state what each named defendant did that led to 9 the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678–79. Although accepted 10 as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the 11 speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Plaintiff’s amended 12 complaint may not exceed twenty-five (25) pages, exclusive of exhibits. 13 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 14 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 15 “buckshot” complaints). 16 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 17 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 18 complaint must be “complete in itself without reference to the prior or superseded pleading.” 19 Local Rule 220. Thus, any second amended complaint must fully reallege all of the claims 20 Plaintiff intends to pursue in this action, including any claims under the Fourth or 21 Fourteenth Amendments. 22 Based on the foregoing, it is HEREBY ORDERED that: 23 1. The Clerk’s Office shall send Plaintiff a complaint form; 24 2. Within thirty (30) days from the date of service of this order, Plaintiff must either: 25 a. File a second amended complaint, not to exceed twenty-five (25) pages, curing 26 the deficiencies identified by the Court’s orders and indicating whether he intends 27 to bring a Fourth Amendment claim and the Defendants against whom he intends 28 to bring that claim; or 1 b. Notify the Court in writing that he does not wish to file a second amended 2 complaint and he is willing to proceed on his first amended complaint only on his 3 claims against Defendants Gifford, Alvarez, Boyd, and Lemon for excessive force 4 and denial of medical care in violation of the Fourteenth Amendment for the 5 incident on March 23, 2022; and 6 3. If Plaintiff fails to comply with this order, the Court will recommend dismissal of 7 this action, without prejudice, for failure to obey a court order and for failure to 8 prosecute. 9 IT IS SO ORDERED. 10 11 Dated: September 19, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28