Foster v. Vasquez et al

Filing 36

ORDER DENYING 34 Motion Requesting Leave to Amend Complaint, signed by Chief Judge Ralph R. Beistline on 8/7/2014. Plaintiff is Granted Until 9/5/2014 to File Renewed Motion to File Amended Complaint. (Marrujo, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL FOSTER,
Case No. 1:10-cv-01830-RRB
Plaintiff,
ORDER DENYING MOTION
REQUESTING LEAVE TO AMEND
COMPLAINT AT DOCKET 34

vs.
CAPTAIN F. VASQUEZ; et al.,
Defendants.

At Docket 34 Plaintiff Michael Foster moved for leave to file an Amended
Complaint. Defendants filed a non-opposition. The Court notes that Foster noted the
purpose of filing the Amended Complaint was to add Warden Kathleen Allison as a
defendant in this action. Foster did not, however, attach a copy of his proposed Amended
Complaint. As Defendants correctly note, this Court must screen the Amended Complaint
to determine whether it states cause of action. This Court must dismiss a complaint or
portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that
“fails to state a claim on which relief may be granted,” or that “seeks monetary relief against
a defendant who is immune from such relief.”1 Likewise, a prisoner must exhaust all

1

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203
F.3d 1122, 1126 & n.7 (9th Cir. 2000) (en banc).
ORDER DENYING MOTION AT DOCKET 34
Foster v. Vasquez, 1:10-cv-01830-RRB - 1

administrative remedies as may be available,2 irrespective of whether those administrative
remedies provide for monetary relief.3 In the absence of the proposed Amended Complaint
this Court is unable to make this determination.
Accordingly, the Motion Requesting Leave to Amend Complaint at Docket 34 is
DENIED without prejudice.
Plaintiff Michael Foster is granted until September 5, 2014, within which to renew
his motion to file an Amended Complaint, which motion must have attached thereto a copy
of the proposed Amended Complaint.4
In preparing his Amended Complaint, Foster is reminded that:
1.

Defendants may be sued solely in their personal capacities, not their official

capacities;5
2.

The Amended Complaint is subject to terms of the Court’s Screening Order;

and

2

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006)
(“proper exhaustion” under § 1997e(a) is mandatory and requires proper adherence to
administrative procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion
of administrative remedies must be completed before filing suit).
3

See Booth, 532 U.S. at 734.

4

Plaintiff is cautioned that the Amended Complaint supercedes the original
Complaint and must be complete in itself. That is, the Amended Complaint must include
the allegations against all defendants, not just the newly added party.
5

Will v. Mich. Dept. of State Police, 491 U.S. 58, 70–71 (1989).

ORDER DENYING MOTION AT DOCKET 34
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3.

In his motion, Foster must affirmatively address why this action, as against

Warden Allison, is not barred by the applicable statute of limitations.6
IT IS SO ORDERED this 7th day of August, 2014.
/S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

6

See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Cal. Civ. Proc. Code
§§ 335.1, 352.1(a) (providing a two-year statute of limitations for personal injury claims,
which may be tolled for an additional two years for prisoners).
ORDER DENYING MOTION AT DOCKET 34
Foster v. Vasquez, 1:10-cv-01830-RRB - 3