Martinez v. Davey

Filing 15

ORDER Discharging Order to Show Cause and GRANTING Leave to Amend 13 , signed by Magistrate Judge Barbara A. McAuliffe on 6/16/17: 30-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO MARTINEZ,

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Plaintiff,

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v.
D. DAVEY,

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Case No. 1:16-cv-01655-BAM (PC)
ORDER DISCHARGING ORDER TO SHOW
CAUSE AND GRANTING LEAVE TO
AMEND
(ECF No. 13)

Defendant.

THIRTY (30) DAY DEADLINE

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Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this action under 42 U.S.C. § 1983. Plaintiff initiated this action on June 17, 2016, in

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the Northern District of California. (ECF No. 1.) On October 27, 2016, the case was transferred

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to this district. (ECF No. 6.) On June 6, 2017, the Court issued an order to show cause why this

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action should not be dismissed as duplicative of Martinez v. Davey, et al., No. 1:16-cv-00084-

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LJO-BAM (“Martinez I”), filed on January 20, 2016. Plaintiff filed the instant response on June

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14, 2017. (ECF No. 14.)
In his response, Plaintiff states that on October 16, 2016, he submitted two envelopes by

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prison mail, each containing an amended complaint. Plaintiff states that one amended complaint

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was filed on December 1, 2016, in Martinez v. Davey, No. 1:16-cv-1658-MJS (“Martinez II”).1

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The Court takes judicial notice of the files in Martinez v. Davey, et al., No. 1:16-cv-00084-LJO-BAM (“Martinez I”) and
Martinez v. Davey, No. 1:16-cv-1658-MJS (“Martinez II”). Fed. R. Evid. 201.

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Plaintiff believes that the second of his amended complaints was not filed, because that one was

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regarding the denial of an “Oslen review” only. Plaintiff attaches copies of 602 third level

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responses from May 26, 2016. (ECF No. 14.)

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The Court notes that the first amended complaint in Martinez II was not filed until March

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9, 2017. (Martinez II, First Am. Compl., Docket No. 17.) However, a first amended complaint,

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signed by Plaintiff on November 22, 2016, was filed in Martinez I on December 1, 2016.

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(Martinez I, First Am. Compl., Docket No. 37, p. 12.) Plaintiff is correct that a first amended

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complaint was never filed in the instant case.

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As Plaintiff notes he previously attempted to file a first amended complaint, the Court will

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discharge the order to show cause and construe Plaintiff’s response as a motion to amend the

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complaint. Plaintiff is advised that an amended complaint remains subject to the standards for

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duplicative lawsuits, and may not involve the same claims against the same defendants as his

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other pending actions. Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007),

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(“Plaintiffs generally have no right to maintain two separate actions involving the same subject

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matter at the same time in the same court and against the same defendant.”), overruled on other

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grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). Plaintiff also may not change the nature

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of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The inquiry into causation must be individualized

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and focus on the duties and responsibilities of each individual defendant whose acts or omissions

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are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th

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Cir. 1988). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level. . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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555 (2007) (citations omitted).

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Plaintiff is reminded that, as stated in the Court’s first informational order, the Court will
not serve as a repository for evidence, and he need not attach exhibits to his complaint to prove
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the truth of what is said in the complaint. For Court screening purposes, facts stated in

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complaints are accepted as true. (ECF No. 8, p. 3.) If Plaintiff feels compelled to submit exhibits

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with his amended complaint, he is reminded that such exhibits must be attached to the complaint

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and must be incorporated by reference. Fed. R. Civ. P. 10(c).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended

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complaint must be “complete in itself without reference to the prior or superseded pleading.”

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Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. The order to show cause issued on June 6, 2017, is discharged;

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2. The Clerk’s Office shall send to Plaintiff a civil rights complaint form;

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

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amended complaint or a notice of voluntary dismissal; and

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4. If Plaintiff fails to file an amended complaint in compliance with this order, the

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Court will dismiss this action, with prejudice, for failure to state a claim and to

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obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 16, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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