Hutchinson v. McDaniel et al

Filing 12

ORDER DISCHARGING 10 Order to Show Cause; ORDER INFORMING Plaintiff he has LEAVE TO AMEND the Complaint Once as a Matter of Course; 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 1/2/2014. (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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KEITH HUTCHINSON,

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Plaintiff,

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vs.

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D. L. McDANIEL, et al.,

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Defendants.

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1:12-cv-01451-LJO-GSA-PC
ORDER DISCHARGING ORDER TO
SHOW CAUSE
(Doc. 10.)
ORDER INFORMING PLAINTIFF HE
HAS LEAVE TO AMEND THE
COMPLAINT ONCE AS A MATTER OF
COURSE
(Doc. 11 resolved.)
THIRTY DAY DEADLINE TO FILE
FIRST AMENDED COMPLAINT

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ORDER FOR CLERK TO SEND
COMPLAINT FORM TO PLAINTIFF

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I.

BACKGROUND

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Keith Hutchinson (“Plaintiff") is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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September 6, 2012. (Doc. 1.)

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The court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order

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on November 7, 2013, requiring Plaintiff to show cause, within thirty days, why this case

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should not be dismissed as time barred. (Doc. 10.) On December 4, 2013, Plaintiff filed a

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motion to dismiss this action with leave to amend. (Doc. 11.) Plaintiff did not file any other

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response to the court’s order.

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II.

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PLAINTIFF’S REQUEST FOR LEAVE TO AMEND – RULE 15(a)
Plaintiff seeks leave to amend the Complaint to “correct and overcome the deficiencies

that the Court has pointed out.” (Motion, Doc. 11 at 1:24-26.)

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the

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party=s pleading once as a matter of course at any time before a responsive pleading is served.

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Otherwise, a party may amend only by leave of the court or by written consent of the adverse

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party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Because

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Plaintiff has not amended the complaint, and no responsive pleading has been served in this

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action, Plaintiff has leave to file an amended complaint as a matter of course.

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

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purpose of adding allegations of events occurring after September 6, 2012.

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Plaintiff should take care to include only those claims that have been exhausted prior to the

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initiation of this suit on September 6, 2012. Further, Plaintiff may not change the nature of this

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suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d

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605, 607 (7th Cir. 2007) (no Abuckshot@ complaints).

In addition,

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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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III.

CONCLUSION

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Accordingly, it is HEREBY ORDERED that:

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1.

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The court’s order to show cause, issued on November 7, 2013, is
DISCHARGED;

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2.

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Plaintiff is informed that he has leave to amend the complaint once as a matter
of course;

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2.

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This order resolves Plaintiff's motion to dismiss with leave to amend, filed on
December 4, 2013;

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3.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a
First Amended Complaint using the court=s form;

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4.

The First Amended Complaint should be clearly and boldly titled AFirst

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Amended Complaint,@ refer to case number 1:12-cv-01451-LJO-GSA-PC, and

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be an original signed under penalty of perjury;

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5.

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

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6.

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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:

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January 2, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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