Renteria v. Matharu et al

Filing 24

ORDER DENYING Request to Withdraw First Amended Complaint and Proceed With Original Complaint 23 ; ORDER REQUIRING Plaintiff to File a Second Amended Complaint Pursuant to the Screening Order Issued on December 14, 2018 22 ; Thirty-Day Deadline for Plaintiff to File Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 1/12/2019. (Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

LUIS RENTERIA,

11

Plaintiff,

12
13

vs.
KABIR MATHARU, et al.,

14

Defendants.

15
16
17

19

21
22
23
24
25
26

ORDER DENYING REQUEST TO
WITHDRAW FIRST AMENDED
COMPLAINT AND PROCEED WITH
ORIGINAL COMPLAINT
(ECF No. 23.)
ORDER REQUIRING PLAINTIFF TO
FILE A SECOND AMENDED
COMPLAINT PURSUANT TO THE
SCREENING ORDER ISSUED ON
DECEMBER 14, 2018
(ECF No. 22.)
THIRTY-DAY DEADLINE FOR
PLAINTIFF TO FILE SECOND
AMENDED COMPLAINT

18

20

1:18-cv-00497-LJO-GSA-PC

I.

BACKGROUND
Luis Renteria (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

this civil rights action pursuant to 42 U.S.C. § 1983. On April 12, 2018, Plaintiff filed the
Complaint commencing this case. (ECF No. 1.) On May 29, 2018, Plaintiff filed a First
Amended Complaint as a matter of course. (ECF No. 15.) On December 14, 2018, the court
issued a screening order dismissing the First Amended Complaint for violation of Local Rule
220 and failure to state a claim, with leave to amend within thirty days. (ECF No. 22.)

27
28
1

1

On January 4, 2019, Plaintiff filed a request to withdraw the First Amended Complaint

2

and proceed with the original Complaint. (ECF No. 23.)

3

II.

DISCUSSION

4

Plaintiff’s request shall be denied. As Plaintiff was advised in the court’s screening

5

order issued on December 14, 2018, an amended complaint supercedes the original complaint,

6

Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012). (ECF No. 22 at 7:15-16.)

7

Therefore, Plaintiff’s original Complaint was superceded by Plaintiff’s First Amended

8

Complaint and shall not be reinstated. Plaintiff’s remedy at this stage of the proceedings is to

9

file a Second Amended Complaint curing the deficiencies found by the court in the screening

10

order. To the extent that Plaintiff believes his claims in the original Complaint are cognizable,

11

Plaintiff is not precluded from including those claims in the Second Amended Complaint.

12

Because Plaintiff filed the First Amended Complaint as a matter of course the court did not

13

screen the original Complaint to determine if the claims therein were cognizable.

14

Plaintiff shall be granted thirty days in which to comply with the December 14, 2018,

15

screening order by filing a Second Amended Complaint.

16

III.

CONCLUSION

17

Based on the foregoing, it is HEREBY ORDERED that:

18

1.

19
20

Plaintiff’s request to withdraw the First Amended Complaint and proceed with
the original Complaint, filed on January 4, 2019, is DENIED;

2.

Within thirty days of the date of service of this order, Plaintiff shall comply with

21

the court’s December 14, 2018, screening order by filing a Second Amended

22

Complaint; and

23

3.

24

Plaintiff’s failure to comply with this order shall result in a recommendation that
this case be dismissed for failure to state a claim.

25
26
27
28

IT IS SO ORDERED.
Dated:

January 12, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3