Harper v. Schwarzenegger et al

Filing 19

ORDER Striking Second Amended Complaint for Lack of Signature, signed by Magistrate Judge Gary S. Austin on 2/28/13. Thirty Day Deadline for Plaintiff to File Third Amended Complaint Which Bears Plaintiff's Signature. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON S. HARPER,

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Plaintiff,

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ORDER STRIKING SECOND AMENDED
COMPLAINT FOR LACK OF SIGNATURE
(Doc. 15.)

vs.
ARNOLD SCHWARZENEGGER,
et al.,
Defendants.

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1:10-cv-00926-LJO-GSA-PC

THIRTY DAY DEADLINE FOR PLAINTIFF TO FILE
THIRD AMENDED COMPLAINT WHICH BEARS
PLAINTIFF’S SIGNATURE
/

I.

BACKGROUND

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Jason S. Harper (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis with this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint initiating this action on May

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24, 2010. (Doc. 1.) On December 13, 2010, Plaintiff filed the First Amended Complaint. (Doc. 9.) On

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April 12, 2012, the Court entered an order dismissing the First Amended Complaint for failure to state

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a claim, with leave to amend. (Doc. 11.) On July 12, 2012, Plaintiff filed the Second Amended

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Complaint. (Doc. 16.)

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II.

DISCUSSION

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The Second Amended Complaint is unsigned. (Doc. 16 at 9 ¶V.) All filings submitted to the

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court must bear the signature of the filing party. Local Rule 131; Fed. R. Civ. P. 11(a). Accordingly,

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Plaintiff's Second Amended Complaint, filed on July 12, 2012, shall be stricken from the record for lack

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of signature. Plaintiff shall be afforded an opportunity to file a Third Amended Complaint which bears

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his signature.

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III.

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CONCLUSION AND ORDER
The Court finds that Plaintiff’s Second Amended Complaint must be stricken from the record

for lack of signature, with leave to amend.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be freely given

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when justice so requires.’” The Court will provide Plaintiff with time to file a Third Amended

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Complaint which bears his signature. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir.2000).

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Plaintiff is granted leave to file a Third Amended Complaint within thirty days.

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Plaintiff is reminded that the Third Amended Complaint should be brief, but must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Fed. R. Civ. P. 8(a); Iqbal, 129 S.Ct. at 1948-49; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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There is no respondeat superior liability, and each defendant is only liable for his or her own

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misconduct. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual matter . . . to ‘state

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a claim that is plausible on its face.’” Id. at 1949 (quoting Twombly, 550 U.S. at 555). Plaintiff must

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also demonstrate that each defendant personally participated in the deprivation of his rights. Jones, 297

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F.3d at 934 (emphasis added).

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Plaintiff should note that although he has been given the opportunity to amend, it is not for the

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purpose of adding new defendants relating to issues arising after May 24, 2010. In addition, Plaintiff

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should take care to include only those claims that have been exhausted prior to the initiation of this suit

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on May 24, 2010.

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While exhibits are permissible, they are not necessary in the federal system of notice pleading,

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Fed. R. Civ. P. 8(a). Plaintiff is advised that under Rule 8 of the Federal Rules of Civil Procedure,

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Plaintiff is only obligated to provide “a short and plain statement of [his] claim.” Plaintiff is not

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obligated to prove the allegations in his complaint at this stage. Attaching a large number of exhibits

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to a complaint may result in the complaint being dismissed for failure to comply with Federal Rule of

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Civil Procedure 8, as it will render the complaint to be neither a “short” nor “plain” statement of

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Plaintiff’s claims.

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Plaintiff is also reminded that an amended complaint supercedes the original complaint, Lacey

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v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in itself

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without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “Third Amended

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Complaint,” refer to the appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:
1.

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Plaintiff’s Second Amended Complaint, filed on July 12, 2012, is STRICKEN from the
record for lack of Plaintiff’s signature, with leave to amend;

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2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a Third

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Amended Complaint which bears Plaintiff’s signature;
4.

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Plaintiff shall caption the amended complaint “Third Amended Complaint” and refer to
the case number 1:10-cv-00926-LJO-GSA-PC; and

5.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure to state
a claim upon which relief may be granted.

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IT IS SO ORDERED.
Dated:
6i0kij

February 28, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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