(PC) Aytman v. Pfieffer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TORIAN AYTMAN, Case No. 1:23-cv-00382-JLT-BAM (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS 13 v. (ECF No. 12) 14 PFEIFFER, et al., ORDER GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT 15 Defendants. THIRTY (30) DAY DEADLINE 16 17 Plaintiff Torian Aytman (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On July 10, 2023, the Court issued a screening order granting Plaintiff leave to file a 20 second amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 21 10.) Following Plaintiff’s failure to file a second amended complaint or a notice of voluntary 22 dismissal, the Court issued findings and recommendations that this action be dismissed, with 23 prejudice, for failure to state a claim, failure to obey court orders, and failure to prosecute. (ECF 24 No. 12.) Plaintiff was directed to file any objections to the findings and recommendations within 25 fourteen (14) days. (Id.) 26 On September 21, 2023, Plaintiff filed objections to the findings and recommendations. 27 (ECF No. 13.) In his objections, Plaintiff states that despite receiving the Court’s order directing 28 him to file a second amended complaint, he apparently did not file one. However, in response to 1 the Court’s findings and recommendations, Plaintiff attempted to follow the Court’s directions in 2 the screening order to cure the deficiencies in his first amended complaint. In particular, Plaintiff 3 attaches a copy of the policies mentioned in his complaint in an effort to support his allegations 4 and validate his claims. Plaintiff requests that the Court accept this document to move this case 5 forward. (Id.) 6 Having considered Plaintiff’s objections, and in light of Plaintiff’s stated intention to 7 continue prosecuting this action, the Court finds it appropriate to vacate the pending findings and 8 recommendations. However, in order to proceed with this action, Plaintiff must file a second 9 amended complaint in compliance with the Court’s July 10, 2023 screening order, rather than 10 simply filing additional evidence that Plaintiff argues supports his claims. If Plaintiff fails to file 11 a second amended complaint, there is no operative complaint on which this action can 12 continue, and the Court will again recommend dismissal of this action for failure to 13 prosecute and failure to state a claim. 14 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 15 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 16 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise 17 a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 18 Any amended complaint shall be limited to 25 pages in length, excluding exhibits. Plaintiff may 19 not join unrelated claims. 20 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 21 claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 22 “buckshot” complaints). 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 amended 25 complaint must be “complete in itself without reference to the prior or superseded pleading.” 26 Local Rule 220. 27 /// 28 /// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations issued on August 28, 2023, (ECF No. 12), are 3 VACATED; 4 2. The Clerk’s Office shall send Plaintiff a complaint form; 5 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second 6 amended complaint curing the deficiencies identified by the Court’s July 10, 2023 7 screening order (or file a notice of voluntary dismissal); 8 4. Any amended complaint shall be limited to 25 pages in length, excluding exhibits; and 9 5. If Plaintiff fails to file a second amended complaint in compliance with this order, 10 this action will be dismissed, with prejudice, for failure to prosecute, failure to obey a 11 court order, and failure to state a claim. 12 IT IS SO ORDERED. 13 14 Dated: September 22, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28