Andrews v. Torres et al

Filing 23

ORDER GRANTING Plaintiff LEAVE TO AMEND; Thirty Day Deadline to FILE FIRST AMENDED COMPLAINT; ORDER for Clerk to Send Complaint Form to Plaintiff signed by Magistrate Judge Gary S. Austin on 4/3/2015. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID ANDREWS,

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Plaintiff,

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vs.
S. TORRES, et al.,

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Defendants.

1:12-cv-01042-GSA-PC
ORDER GRANTING PLAINTIFF LEAVE TO
AMEND
(Doc. 1.)
THIRTY DAY DEADLINE TO FILE FIRST
AMENDED COMPLAINT
ORDER FOR CLERK TO SEND
COMPLAINT FORM TO PLAINTIFF

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I.

BACKGROUND
David Andrews (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. ' 1983.

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commencing this action on June 27, 2012. (Doc. 1.) On July 9, 2012, Plaintiff consented to

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Magistrate Judge jurisdiction pursuant 28 U.S.C. § 636(c), and no other parties have made an

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appearance. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the

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Eastern District of California, the undersigned shall conduct any and all proceedings in the case

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until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

Plaintiff filed the Complaint

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On May 8, 2014, the court dismissed this case without leave to amend for failure to

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state a claim under § 1983, with leave to file a habeas corpus petition, and entered judgment.
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(Docs. 15, 16.) On May 21, 2014, Plaintiff appealed the judgment to the Ninth Circuit. (Doc.

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17.)

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On March 2, 2015, the Ninth Circuit remanded the case to the district court, with

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instructions to allow Plaintiff to file an amended complaint. (Doc. 21.) The Ninth Circuit

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reversed the district court’s dismissal of Plaintiff’s § 1983 claims as Heck-barred, and affirmed

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the district court's dismissal of Plaintiff's equal protection and due process claims. (Doc. 21 at

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2-3.)

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jurisdiction over the pendent state law claims, to permit the district court to address the issue on

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remand. (Id. at 3.) On March 25, 2015, the Ninth Circuit entered the formal mandate. (Doc.

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The Ninth Circuit also vacated the district court’s decision declining to exercise

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The court has reopened this case, and this action now proceeds on Plaintiff's original

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Complaint filed on June 27, 2012. (Doc. 1.) In light of the Ninth Circuit’s decision, Plaintiff

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shall be granted leave to amend the complaint.

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II.

CONCLUSION AND ORDER

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Plaintiff is granted thirty days in which to file a First Amended Complaint in this action.

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Plaintiff is informed he must demonstrate in his amended complaint how the conditions

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complained of have resulted in a deprivation of Plaintiff=s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms

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how each named defendant is involved. There can be no liability under 42 U.S.C. ' 1983

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unless there is some affirmative link or connection between a defendant=s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164,

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167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Further, Plaintiff may not change the nature of this suit by adding new, unrelated claims

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in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no Abuckshot@

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complaints).

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Finally, Plaintiff is advised that an amended complaint supercedes the original

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complaint, Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it

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must be complete in itself without reference to the prior or superceded pleading. Local Rule
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220. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged. The First Amended Complaint

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should be clearly and boldly titled AFirst Amended Complaint,@ refer to the appropriate case

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number, and be an original signed under penalty of perjury.

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Accordingly, it is HEREBY ORDERED that:

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1.

Plaintiff is GRANTED leave to amend the complaint;

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2.

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

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First Amended Complaint using the court=s form;
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The First Amended Complaint should be clearly and boldly titled AFirst

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Amended Complaint,@ refer to case number 1:12-cv-01042-GSA-PC, and be an

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original signed under penalty of perjury;

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4.

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The Clerk of the Court shall send one civil rights complaint form to Plaintiff;
and

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Plaintiff is warned that the failure to comply with this order may result in the
dismissal of this action for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

April 3, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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