(PC)Allen v. Arias ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES D. ALLEN, Case No. 1:22-cv-01502-ADA-BAM (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED 13 v. COMPLAINT (ECF No. 14) 14 ARIAS, et al., ORDER VACATING FINDINGS AND 15 Defendants. RECOMMENDATIONS (ECF No. 13) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff James D. Allen (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently pending are the 20 Court’s July 12, 2023 findings and recommendations regarding dismissal of certain claims and 21 defendants and for this action to proceed on Plaintiff’s first amended complaint for excessive 22 force against Defendant M. Rodriguez in violation of the Eighth Amendment (claim 2) and failure 23 to protect/intervene against John Doe correctional officer in violation of the Eighth Amendment 24 (claim 2). (ECF No. 13.) 25 On July 27, 2023, Plaintiff filed objections to the findings and recommendations, together 26 with a request to submit a second amended complaint. (ECF No. 14.) Plaintiff requests a last 27 attempt to correct any/all deficiencies previously noted in the Court’s screening orders and states 28 that he wishes to include state law claims that were mistakenly left out of the first amended 1 complaint. Plaintiff also contends that all events in the first amended complaint stem from the 2 same related series of events. (Id.) 3 In light of Plaintiff’s pro se status, his assertion that he mistakenly omitted state law 4 claims from his first amended complaint, as well as the inclusion of state law claims in the 5 original complaint and references to compliance with the Government Claims Act in the first 6 amended complaint, the Court finds it appropriate to vacate the pending findings and 7 recommendations to allow Plaintiff to file a second amended complaint to include the omitted 8 state law claims. This order does not mean that the Court agrees with Plaintiff’s argument that all 9 of the alleged claims are properly joined in a single action. Once filed, the Court will screen the 10 second amended complaint and determine whether there are any cognizable claims, and which 11 claims, if any, are properly joined. 12 Plaintiff’s second amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must 13 state what each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, 14 Iqbal, 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be 15 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 16 (citations omitted). 17 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 18 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 19 “buckshot” complaints). Plaintiff must decide which related claims he wishes to pursue in this 20 action and which claim he will pursue in a separate action. If Plaintiff’s amended complaint 21 continues to improperly join claims and defendants, the Court will choose which cognizable 22 claims, if any, that Plaintiff may pursue. Plaintiff may not join unrelated claims. 23 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 24 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s second 25 amended complaint must be “complete in itself without reference to the prior or superseded 26 pleading.” Local Rule 220. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s motion for leave to file an amended complaint, (ECF No. 14), is GRANTED; 1 2. The findings and recommendations issued on July 12, 2023, (ECF No. 13), are 2 VACATED; 3 3. The Clerk’s Office shall send Plaintiff a complaint form; 4 4. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second 5 amended complaint, not to exceed twenty-five (25) pages; and 6 5. If Plaintiff fails to file a second amended complaint in compliance with this order, 7 this action will be dismissed for failure to prosecute and for failure to obey a court 8 order. 9 IT IS SO ORDERED. 10 11 Dated: July 28, 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