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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH HUTCHINSON, 12 Plaintiff, 13 vs. 14 D. L. McDANIEL, et al., 15 Defendants. 16 17 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 18 ORDER FOR CLERK TO SEND COMPLAINT FORM TO PLAINTIFF 19 20 21 I. BACKGROUND 22 Keith Hutchinson (“Plaintiff") is a state prisoner proceeding pro se in this civil rights 23 action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on 24 September 6, 2012. (Doc. 1.) 25 The court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order 26 on November 7, 2013, requiring Plaintiff to show cause, within thirty days, why this case 27 should not be dismissed as time barred. (Doc. 10.) On December 4, 2013, Plaintiff filed a 28 1 1 motion to dismiss this action with leave to amend. (Doc. 11.) Plaintiff did not file any other 2 response to the court’s order. 3 II. 4 5 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.) 6 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the 7 party=s pleading once as a matter of course at any time before a responsive pleading is served. 8 Otherwise, a party may amend only by leave of the court or by written consent of the adverse 9 party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Because 10 Plaintiff has not amended the complaint, and no responsive pleading has been served in this 11 action, Plaintiff has leave to file an amended complaint as a matter of course. 12 Plaintiff is informed he must demonstrate in his amended complaint how the conditions 13 complained of have resulted in a deprivation of Plaintiff=s constitutional rights. See Ellis v. 14 Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms 15 how each named defendant is involved. There can be no liability under 42 U.S.C. ' 1983 16 unless there is some affirmative link or connection between a defendant=s actions and the 17 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 18 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 19 Plaintiff should note that although he has the opportunity to amend, it is not for the 20 purpose of adding allegations of events occurring after September 6, 2012. 21 Plaintiff should take care to include only those claims that have been exhausted prior to the 22 initiation of this suit on September 6, 2012. Further, Plaintiff may not change the nature of this 23 suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 24 605, 607 (7th Cir. 2007) (no Abuckshot@ complaints). In addition, 25 Finally, Plaintiff is advised that an amended complaint supercedes the original 26 complaint, Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it 27 must be complete in itself without reference to the prior or superceded pleading. Local Rule 28 220. Therefore, in an amended complaint, as in an original complaint, each claim and the 2 1 involvement of each defendant must be sufficiently alleged. The First Amended Complaint 2 should be clearly and boldly titled AFirst Amended Complaint,@ refer to the appropriate case 3 number, and be an original signed under penalty of perjury. 4 III. CONCLUSION 5 Accordingly, it is HEREBY ORDERED that: 6 1. 7 The court’s order to show cause, issued on November 7, 2013, is DISCHARGED; 8 2. 9 Plaintiff is informed that he has leave to amend the complaint once as a matter of course; 10 2. 11 This order resolves Plaintiff's motion to dismiss with leave to amend, filed on December 4, 2013; 12 3. 13 Within thirty (30) days from the date of service of this order, Plaintiff shall file a First Amended Complaint using the court=s form; 14 4. The First Amended Complaint should be clearly and boldly titled AFirst 15 Amended Complaint,@ refer to case number 1:12-cv-01451-LJO-GSA-PC, and 16 be an original signed under penalty of perjury; 17 5. 18 The Clerk of the Court shall send one civil rights complaint form to Plaintiff; and 19 6. 20 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. 21 22 23 24 IT IS SO ORDERED. Dated: 25 26 27 January 2, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 28 3

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