Reid v. United States of America et al

Filing 90

ORDER GRANTING Plaintiff's 88 Motion for Miscellaneous Relief; ORDER DIRECTING Plaintiff to File a Second Amended Complaint or a Notice of his Desire to Proceed only on Eighth Amendment Claims; 30-Day Deadline signed by Magistrate Judge Jennifer L. Thurston on 1/5/2021. (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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GORDON C. REID,

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Plaintiff,

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v.
UNITED STATES OF AMERICA, et al.,

Case No. 1:14-cv-01163-NONE-JLT (PC)
ORDER GRANTING PLAINTIFF’S
MOTION FOR MISCELLANEOUS
RELIEF
(Doc. 88)

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ORDER DIRECTING PLAINTIFF TO
FILE A SECOND AMENDED
COMPLAINT OR A NOTICE OF HIS
DESIRE TO PROCEED ONLY ON
EIGHTH AMENDMENT CLAIMS

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30-DAY DEADLINE

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Defendants.

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Plaintiff brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed.

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Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act. On July 28, 2015, the

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Court screened Plaintiff’s first amended complaint (Doc. 28) and found that it stated a cognizable

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First Amendment retaliation claim under Bivens, but that its FTCA claims and Eighth

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Amendment excessive force and conditions of confinement claims were not cognizable. (Doc.

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31.) On October 28, 2016, the Court dismissed the FTCA and Eighth Amendment claims. (Doc.

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45.)

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On February 2, 2018, Defendants filed a motion to dismiss the remaining, First

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Amendment retaliation claim. (Doc. 71.) The Court granted the motion and dismissed the claim

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and this action on April 25, 2018. (Doc. 76.) Plaintiff appealed the order of dismissal. (Doc. 78.)

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On September 2, 2020, the Ninth Circuit Court of Appeals affirmed the dismissal of the

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First Amendment retaliation claims, but it reversed the dismissals of the excessive force,

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conditions of confinement, and FTCA claims. (Doc. 84.) The judgment took effect on October 26,

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2020. (Doc. 87.) The Ninth Circuit noted that this Court had dismissed the FTCA claims for

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Plaintiff’s failure to plead exhaustion, but that, on appeal, Plaintiff asserted that he can show that

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he exhausted the FTCA claims. (Doc. 84 at 7.) The Ninth Circuit, therefore, remanded the FTCA

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claims to this Court to determine if amendment would be futile. (Id.) Plaintiff now requests a

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“post-appeal procedural order” regarding this action. (Doc. 88.)

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The Court does not find that amendment would be futile. Therefore, the Court will grant

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Plaintiff leave to file an amended complaint to properly plead exhaustion of his FTCA claims.

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The Court reminds Plaintiff that an amended complaint supersedes the original complaint and

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prior amendments. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Thus, a second

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amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220. The Court provides Plaintiff with an opportunity to amend his

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complaint to cure the deficiencies identified herein. However, he may not change the nature of

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this suit by adding unrelated claims in an amended complaint. Accordingly, the Court ORDERS:

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1.

Plaintiff’s motion for a “post-appeal procedural order” (Doc. 88) is GRANTED;

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2.

Plaintiff is GRANTED leave to file a second amended complaint;

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3.

The Clerk’s Office shall send Plaintiff a civil rights complaint form; and,

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4.

Within 30 days of the date of service of this order, Plaintiff shall file one of the

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following items:

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a. a second amended complaint curing the deficiencies in his pleading, or

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b. a notice that he wishes to (1) proceed only on his Eighth Amendment excessive

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force and conditions of confinement claims under Bivens and (2) dismiss his

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FTCA claims.

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IT IS SO ORDERED.
Dated:

January 5, 2021

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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