Jackson v. United States Department of Justice Drug Enforcement Administration

Filing 6

ORDER that 5 Plaintiff's First Amended Complaint and this action are dismissed for failure to state a claim, and the Clerk must enter judgment accordingly. Signed by Judge G Murray Snow on 10/27/11. (LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) United States Department of Justice Drug) ) Enforcement Administration, ) ) Defendant. ) ) Richard Edward Jackson, III, No. CV-11-1748-PHX-GMS ORDER 15 16 On September 26, 2011, the Court dismissed Plaintiff’s Complaint with leave to 17 amend. Plaintiff has filed a “Second” Amended Complaint.1 The Court will screen 18 Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2) before it is allowed 19 to be served. Pursuant to that screening Plaintiff’s First Amended Complaint is dismissed 20 without leave to amend. 21 I. First Amended Complaint 22 A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 23 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 24 1546 (9th Cir. 1990). After amendment, the Court treats the original Complaint as 25 nonexistent. Ferdik, 963 F.2d at 1262. Thus, the Court will consider only those claims 26 27 1 28 Although Plaintiff titles his complaint as a “Second Amended Complaint” it is in fact a “First Amended Complaint.” 1 raised in the First Amended Complaint against only those Defendants named in the First 2 Amended Complaint. 3 Plaintiff’s First Amended Complaint fails to state a claim on which relief may be 4 granted. It is therefore dismissed pursuant to 28 U.S.C. § 1915(e)(2). 5 II. Dismissal without Leave to Amend 6 Because Plaintiff has failed to state a claim in his First Amended Complaint, the Court 7 will dismiss his First Amended Complaint. “Leave to amend need not be given if a 8 complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 9 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 10 particularly broad where Plaintiff has previously been permitted to amend his complaint. 11 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated 12 failure to cure deficiencies is one of the factors to be considered in deciding whether justice 13 requires granting leave to amend. Moore, 885 F.2d at 538. 14 Plaintiff has made two efforts at crafting a viable complaint and appears unable to do 15 so despite specific instructions from the Court. The Court finds that further opportunities to 16 amend would be futile. Therefore, the Court, in its discretion, will dismiss Plaintiff’s First 17 Amended Complaint without leave to amend. 18 IT IS HEREBY ORDERED Plaintiff’s First Amended Complaint (Doc. 5) and this 19 action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment 20 accordingly. 21 DATED this 27th day of October, 2011. 22 23 24 25 26 27 28 -2-

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