Silva v. Sneed et al

Filing 16

ORDER to SHOW CAUSE why this Action Should not be Dismissed for Failure to State a Claim and Failure to Comply with a Court Order signed by Magistrate Judge Jeremy D. Peterson on 10/19/2018. Show Cause Response due by 11/21/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUSTIN J. SILVA,

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Plaintiff,
v.
HELEN SNEED, et al.,

Case No. 1:18-cv-00044-DAD-JDP
ORDER FOR PLAINTIFF TO SHOW CAUSE
WHY THIS ACTION SHOULD NOT BE
DISMISSED FOR FAILURE TO STATE A
CLAIM AND FAILURE TO COMPLY WITH A
COURT ORDER

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ORDER DIRECTING CLERK OF COURT TO
SEND PLAINTIFF A COPY OF THE
COURT’S SCREENING ORDER

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THIRTY-DAY DEADLINE

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought

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under 42 U.S.C. § 1983. On February 13, the court screened plaintiff’s original complaint, ECF

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No. 1, and found that he failed to state a claim, ECF No. 9. The court allowed plaintiff to file a

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first amended complaint but advised him that “an amended complaint supersedes the original

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

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must be complete in itself without reference to the prior or superseded pleading, Local Rule 220.”

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ECF No. 9, at 8-9.

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On March 3, 2018, plaintiff filed a first amended complaint1 that failed to comply with the

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court’s order. ECF No. 11. Instead of restating the factual allegations of his original complaint,

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plaintiff repeatedly referred to his prior pleading. Id. at 3, 4 (describing factual allegations as

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“Same as original complaint”). Because plaintiff has not restated the facts alleged in his original

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complaint, he has failed to state a claim upon which relief can be granted. The court will direct

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plaintiff to show cause why this case should not be dismissed for failure to obey a court order and

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failure to state a claim. The court will grant plaintiff leave to file an amended complaint within

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30 days of this order.
Should plaintiff choose to amend the complaint,2 the amended complaint should be brief,

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Fed. R. Civ. P. 8(a), but must state what actions each named defendant took that deprived plaintiff

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of constitutional or other federal rights, see Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). The amended complaint must set forth “sufficient factual matter . . . to

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‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

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550 U.S. at 570). There is no respondeat superior liability, and each defendant is liable only for

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his or her own misconduct. See id. at 677. Plaintiff must allege that each defendant personally

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participated in the deprivation of his rights. See Jones, 297 F.3d at 934. Plaintiff should note that

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a short, concise statement of the allegations in chronological order will help the court identify his

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claims. Plaintiff should describe how each defendant wronged him, the circumstances

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surrounding each of the claimed violations, and any harm he suffered.

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If plaintiff decides to file an amended complaint, the amended complaint will supersede

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the original complaint, Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en

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banc), and the amended complaint must be complete on its face without reference to the prior,

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superseded pleading, see E.D. Cal. Local Rule 220. Once an amended complaint is filed, the

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prior complaint and any associated attachments no longer serve any function in the case.

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Plaintiff subsequently filed two exhibits “to be added to the current complaint.” ECF No. 13;
ECF No. 15.
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Plaintiff may not change the nature of this suit by adding new, unrelated claims or new,
unrelated defendants in his amended complaint. See Fed. R. Civ. P. 18; George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in different
suits . . . .”).
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Therefore, in an amended complaint, as in an original complaint, plaintiff must assert each claim

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and allege each defendant’s involvement in sufficient detail. The amended complaint should be

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titled “Second Amended Complaint” and refer to the appropriate case number.

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ORDER

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Accordingly,

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1.

Plaintiff is ordered to show cause as to why this case should not be dismissed for

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failure to state a claim and failure to obey a court order. Within thirty (30) days

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from the date of service of this order, plaintiff must file a written response to this

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order. Plaintiff may also respond to this order by filing an appropriate amended

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complaint as explained in the court’s screening order.

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2.

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The clerk of court is directed to send plaintiff a copy of the court’s February 13,
2018 screening order. ECF No. 9.

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3.

Should plaintiff choose to amend the complaint, plaintiff must caption the

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amended complaint “Second Amended Complaint” and refer to the case number

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1:18-cv-00044-DAD-JDP.
4.

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Failure to comply with this order will result in the dismissal of this action.

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IT IS SO ORDERED.

Dated:

October 19, 2018

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UNITED STATES MAGISTRATE JUDGE

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