Lipsey v. Reddy et al

Filing 26

ORDER Discharging 24 Order to Show Cause; ORDER Directing Clerk of the Court to File Second Amended Complaint 25 , signed by Magistrate Judge Barbara A. McAuliffe on 9/11/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 CHRISTOPHER LIPSEY, JR., 15 Plaintiff, 16 17 vs. DR. REDDY, et al., 18 Defendants. 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:17-cv-00569-LJO-BAM (PC) ORDER DISCHARGING AUGUST 1, 2017 ORDER TO SHOW CAUSE (ECF No. 24) ORDER DIRECTING CLERK OF COURT TO FILE SECOND AMENDED COMPLAINT (ECF No. 25) Plaintiff Christopher Lipsey is a state prisoner proceeding pro se and in forma pauperis in 22 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 23 Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 24 I. Relevant Procedural Background 25 On June 6, 2017, the Court screened the complaint pursuant to 28 U.S.C. § 1915A, and 26 found that it stated cognizable claim for excessive force in violation of the Eighth Amendment 27 against Defendants Hernandez, Celedon, and Mancilla for allegedly attacking Plaintiff on March 28 21, 2016, but failed to state any other claims. (ECF No. 9.) The Court required Plaintiff to either 1 1 file an amended complaint or notify the Court of his willingness to proceed only on that claim. 2 Plaintiff filed a written notice of willingness to proceed only on that claim. (ECF No. 11.) On June 6, 2017, the undersigned also recommended that certain other claims in the 3 4 original complaint be dismissed, without prejudice, for improper venue and as improperly joined. 5 (ECF No. 10.) Plaintiff filed a first amended complaint related to those claims. (ECF No. 15.) 6 The assigned District Judge found that the recommendations were supported by the record and 7 proper analysis, and issued an order dismissing the claims for improper venue and as improperly 8 joined. (ECF No. 23.) 9 On June 19, 2017, the Court ordered Plaintiff to submit documents sufficient for the U.S. 10 Marshal to effect service of process on Defendants Hernandez, Celedon, and Mancilla. (ECF No. 11 12.) On June 29, 2017, Plaintiff submitted his Notice of Submission of Documents, which 12 included three summonses and three completed USM-285 forms. However, Plaintiff failed to 13 submit the required copies of the endorsed original complaint. (ECF No. 17.) On August 1, 2017, the Court issued an order to show cause why Plaintiff’s case should 14 15 not be dismissed for Plaintiff’s failure to comply with the Court’s order and failure to prosecute. 16 (ECF No. 24.) Plaintiff was permitted either to show cause in writing, or to submit four (4) 17 copies of the endorsed complaint. Currently before the Court is Plaintiff’s second amended complaint, which is dated 18 19 August 5, 2017, and was lodged by the Clerk of the Court on August 25, 2017. (ECF No. 35.) 20 II. Discussion 21 Plaintiff’s second amended complaint restates his allegations against Defendants 22 Hernandez, Celedon, and Mancilla from the original complaint, and omits all other claims which 23 were previously dismissed in this action. Plaintiff also asserts his original claim of a violation of 24 the Eighth Amendment due to excessive force, as well as additional claims under California 25 Civil Code sections 51 and 52.1, and the Bane Act. (ECF No. 25.) Thus, it appears Plaintiff seeks 26 to amend his complaint to add additional claims based on the same events alleged in the original 27 complaint. 28 /// 2 1 2 Amended and supplemental pleadings are governed by Federal Rule of Civil Procedure 15. Rule 15(a)(1) provides as follows: 3 A party may amend its pleading once as a matter of course within: 4 (A) 21 days after serving it, or 5 6 (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. 7 8 Further, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 9 55, 57 (9th Cir. 1967). 10 In this case, Plaintiff submitted his proposed second amended complaint before service of 11 process was effected on Defendants Hernandez, Celedon, or Mancilla, and before any responsive 12 pleading was filed. Thus, Plaintiff may amend his complaint as a matter of course. 13 Accordingly, it is HEREBY ORDERED: 14 1. 15 16 The order to show cause issued on August 1, 2017 (ECF No. 24) is discharged. Plaintiff need no longer submit any copies of the original complaint in this action; and 2. The Clerk of the Court is hereby directed to file Plaintiff’s second amended 17 complaint (ECF No. 25) on the docket. Plaintiff second amended complaint will be screened in 18 due course. 19 20 21 22 IT IS SO ORDERED. Dated: /s/ Barbara September 11, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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