Jorgenson v. Moore et al

Filing 18

ORDER VACATING 16 Findings and Recommendations, and Allowing Plaintiff to File Second Amended Complaint Within Thirty Days, signed by Magistrate Judge Erica P. Grosjean on 6/21/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL JORGENSON,

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Plaintiff,

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v.

Case No. 1:17-cv-00817-LJO-EPG (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS, AND ALLOWING
PLAINTIFF TO FILE SECOND AMENDED
COMPLAINT WITHIN THIRTY DAYS

THOMAS MOORE, M.D., et al.,
Defendants.

(ECF NO. 16)

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Paul Jorgenson (“Plaintiff”) is a federal prisoner proceeding pro se and in forma
pauperis in this action.

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On May 16, 2018, the Court entered findings and recommendations, recommending that

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this action be allowed to proceed on Plaintiff’s “FTCA claim against the United States and his

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state tort claims for medical negligence and battery against Defendants Haak, Randhawa, and

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Emanuel Medical Center.” (ECF No. 16, p. 11). The Court also recommended “that all other

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claims and defendants be dismissed with prejudice.” (Id.).

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On June 20, 2018, Plaintiff filed objections to the findings and recommendations. (ECF

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No. 17). In his objections, Plaintiff has made what appear to be new factual allegations. For

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example, Plaintiff appears to be alleging that defendant Moore directly ordered Plaintiff to

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undergo at least one of the procedures at issue in his complaint. (Id. at 3). Additionally, it

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appears that Plaintiff is attempting to assert a claim against the four unknown escort
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correctional officers based on the conditions he was subjected to during his hospital stay,

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including keeping him chained hand and foot to his hospital bed for seventy-two hours. (Id. at

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6).

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Given these new allegations, and that under Rule 15(a)(2) of the Federal Rules of Civil

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Procedure, “the court should freely give leave [to amend] when justice so requires,” the Court

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will allow Plaintiff to file a Second Amended Complaint.

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Plaintiff should note that although he has been given the opportunity to amend, it is not

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for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith,

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

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Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey

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v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete

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in itself without reference to the prior or superseded pleading, Local Rule 220. Therefore, in an

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amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged. The amended complaint should be clearly and boldly

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titled “Second Amended Complaint,” refer to the appropriate case number, and be an original

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signed under penalty of perjury.

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Accordingly, IT IS ORDERED that:

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1. The Findings and Recommendations issued on May 16, 2018 (ECF No. 16), are

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VACATED; and

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2. Plaintiff has thirty days from the date of service of this order to file his Second

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Amended Complaint.

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IT IS SO ORDERED.
Dated:

June 21, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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