(PS) Van Den Heuvel v. Lua ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HEUVEL , Case No. 2:21-cv-01452-TLN-JDP (PC) 12 Plaintiff, ORDER VACATING THE APRIL 13, 2022 FINDINGS AND RECOMMENDATIONS 13 v. ECF No. 7 14 TERESA LUA, SCREENING ORDER THAT PLAINTIFF: 15 Defendant. (1) STAND BY HIS COMPLAINT 16 SUBJECT TO DISMISSAL, OR 17 (2) FILE AN AMENDED COMPLAINT 18 ECF No. 4 19 20 Plaintiff Jean Marc Van den Heuvel brings this action against Dr. Carl Hillendhal and 21 Teresa Lua for the killing of his service dog, Toby. On April 13, 2022, I screened plaintiff’s 22 complaint, found that it failed to state a claim, and recommended that it be dismissed without 23 leave to amend. Plaintiff subsequently filed objections to the findings and recommendations. 24 ECF No. 8. Having considered those objections, I find that that plaintiff should be afforded an 25 opportunity to amend his complaint before this action is dismissed. Accordingly, I will vacate the 26 April 13, 2022 findings and recommendations and grant plaintiff an opportunity to file an 27 amended complaint that cures the deficiencies addressed in the court’s April 13, 2022 order. 28 1 If plaintiff decides to file an amended complaint, the amended complaint will supersede 2 | the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 3 | banc). This means that the amended complaint will need to be complete on its face without 4 | reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 5 | filed, the current complaint no longer serves any function. Therefore, in an amended complaint, 6 | as in an original complaint, plaintiff will need to assert each claim and allege each defendant’s 7 | involvement in sufficient detail. The amended complaint should be titled “Second Amended 8 | Complaint” and refer to the appropriate case number. If plaintiff does not file an amended 9 | complaint, I will recommend that this action be dismissed. 10 Accordingly, it is hereby ORDERED that: 11 1. The April 13, 2022 findings and recommendations, ECF No. 7, are vacated. 12 2. Within thirty days from the service of this order, plaintiff must either file an 13 | amended complaint or advise the court he wishes to stand by his current complaint. If he selects 14 | the latter option, I will recommend that this action be dismissed. 15 3. Failure to comply with this order will result in the dismissal of this action. 16 4. The Clerk of Court is directed to send plaintiff a new form complaint. 17 18 IT IS SO ORDERED. 19 ( q Sty — Dated: _ December 23, 2022 Q_-——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28