Darden v. Mechael et al

Filing 10

ORDER Vacating 8 Findings and Recommendations, and Granting Plaintiff Thirty Days to File a Second Amended Complaint signed by Magistrate Judge Stanley A. Boone on 09/14/2017. Thirty Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALDINE DARDEN,

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Plaintiff,
v.
PHILIPE MECHAEL, et al.,
Defendants.

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Case No.: 1:17-cv-00505-LJO-SAB (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS, AND GRANTING
PLAINTIFF THIRTY DAYS TO FILE A SECOND
AMENDED COMPLAINT
[ECF Nos. 8, 9]

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Plaintiff Geraldine Darden is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff did not consent or decline to United States Magistrate Judge

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jurisdiction; therefore, this matter has been referred to a United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 18, 2017, the Court dismissed the complaint, with leave to amend, for failure to state a

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cognizable claim for relief. Plaintiff filed an amended complaint on June 28, 2017. On July 31, 2017,

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the undersigned issued Findings and Recommendations recommending dismissal of the action for

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failure to state a cognizable claim for relief. Plaintiff filed objections to the Findings and

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Recommendations on September 8, 2017.

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In her objections, Plaintiff elaborates on her claim that there was a pattern of denial of

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appropriate medication to treat her multiple sclerosis which resulted in “enormous pain.” In light of

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Plaintiff’s allegations set forth in her objections and in the interest of justice, the Court will vacate the
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Findings and Recommendations and grant Plaintiff one additional opportunity to amend the complaint

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to present a cognizable claim for deliberate indifference to a serious medical need in violation of the

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Eighth Amendment. Plaintiff is advised that a second amended complaint should be brief, Fed R. Civ.

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P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional or other federal rights. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition,

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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Although accepted as true, the

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level….” Bell

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Atlantic Corp. v. Trowmbly, 550 U.S. 544, 555 (2007). Finally, Plaintiff is advised that an amended

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complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.

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1997), overruled in part on other grounds, Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir.

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2012); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without

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reference to the prior or superseded pleading.” Local Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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1.

The Findings and Recommendations, issued July 31, 2017, are vacated;

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2.

Plaintiff is granted thirty (30) days from the date of service of this order in which to

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file her second amended complaint; and
3.

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If Plaintiff fails to comply with this order, the Court will re-issue the Findings and

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Recommendations recommending dismissal of the action for failure to state a cognizable claim for

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relief.

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IT IS SO ORDERED.

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Dated:

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September 14, 2017
UNITED STATES MAGISTRATE JUDGE

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