Sullivan v. Biter et.al.

Filing 25

ORDER Denying Motion For Court Hearing (Doc. 24 ), ORDER Informing Plaintiff That He Has Leave To Amend The Complaint Once As A Matter Of Course, Thirty Day Deadline To File First Amended Complaint, signed by Magistrate Judge Gary S. Austin on 2/7/2013. (First Amended Complaint due by 3/11/2013)(Fahrney, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17

MICHAEL J. SULLIVAN,

)
)
)
Plaintiff,
)
)
vs.
)
)
)
M. D. BITER, et al.,
)
)
)
Defendants.
)
)
____________________________________)

1:12-cv-01662-AWI-GSA-PC
ORDER DENYING MOTION FOR
COURT HEARING
(Doc. 24.)
ORDER INFORMING PLAINTIFF THAT
HE HAS LEAVE TO AMEND THE
COMPLAINT ONCE AS A MATTER OF
COURSE
THIRTY DAY DEADLINE TO FILE
FIRST AMENDED COMPLAINT

18
19

I.

BACKGROUND

20

Michael J. Sullivan ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action

21

pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on June 28, 2012 at the U. S. District

22

Court for the Northern District of California. (Doc. 1.) On October 9, 2012, the case was transferred

23

to the Eastern District of California. (Doc. 6.)

24

On November 19, 2012, Plaintiff filed a notice to the court concerning his motion for preliminary

25

injunctive relief filed on August 28, 2012. (Doc. 20.) Plaintiff also requested the court to substitute

26

names for the Doe Defendants listed in the complaint. Id. On February 3, 2012, Plaintiff filed a motion

27

for a court hearing to resolve his motion for preliminary injunctive relief,. (Doc. 24.)

28

1

1

II.

REQUEST FOR HEARING

2

Plaintiff requests a court hearing to resolve the motion for preliminary injunctive relief he filed

3

on August 28, 2012. Plaintiff is advised that his motion for preliminary injunctive relief was terminated

4

by the Northern District when the case was transferred. The Northern District's transfer order, issued

5

on October 9, 2012, provides that "[t]he Clerk shall terminate any pending motions and transfer the

6

entire file to the Eastern District of California." (Doc. 16:24-25.) Because Plaintiff's motion for

7

preliminary injunctive relief was pending when the transfer order was issued, the motion was terminated

8

before the case was transferred to the Eastern District. Therefore, Plaintiff's motion is not pending at

9

this court, and the request for a court hearing shall be denied. For consideration of his motion for

10

preliminary injunctive relief, Plaintiff must file a new motion at this court.

11

III.

REQUEST TO AMEND COMPLAINT

12

Plaintiff also seeks to amend the complaint to substitute names for his Doe Defendants. Plaintiff

13

may not add information piecemeal to the complaint. Local Rule 220 requires that an amended

14

complaint be complete in itself without reference to any prior pleading. Under Rule 220, then, Plaintiff

15

cannot amend the original complaint simply by requesting the court to make changes in the complaint.

16

As a general rule, an amended complaint supercedes the original complaint, Lacey v. Maricopa County,

17

693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in itself without reference to

18

the prior or superceded pleading. Therefore, to amend the complaint, Plaintiff must submit a First

19

Amended Complaint which is complete in itself.

20

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

21

pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a

22

party may amend only by leave of the court or by written consent of the adverse party, and leave shall

23

be freely given when justice so requires. Fed. R. Civ. P. 15(a). Because Plaintiff has not amended the

24

complaint, and no responsive pleading has been served in this action, Plaintiff has leave to file an

25

amended complaint as a matter of course.

26

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

27

complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy,

28

2

1

625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each named defendant

2

is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

3

connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362

4

(1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th

5

Cir. 1978).

6

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

7

adding new defendants relating to issues arising after June 28, 2012. In addition, Plaintiff should take

8

care to include only those claims that have been exhausted prior to the initiation of this suit on June 28,

9

2012. The First Amended Complaint should be clearly and boldly titled “FIRST AMENDED

10

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

11

III.

CONCLUSION

12

Accordingly, it is HEREBY ORDERED that:

13

1.

Plaintiff's motion for a court hearing is DENIED;

14

2.

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

15

3.

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

16

Amended Complaint using the court’s form;

17

4.

The First Amended Complaint should be clearly and boldly titled “FIRST AMENDED

18

COMPLAINT,” refer to case number 1:12-cv-01662-AWI-GSA-PC , and be an original

19

signed under penalty of perjury;

20

5.

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

21

6.

Plaintiff is warned that the failure to comply with this order will result in a

22

recommendation that this action be dismissed for failure to obey a court order.

23
24

IT IS SO ORDERED.

25

Dated:
6i0kij

February 7, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

26
27
28

3