Xavier v. Roche et al
Filing
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ORDER signed by Magistrate Judge Carolyn K Delaney on 08/03/11 ordering plaintiff's second amended complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a third amended complaint. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GARY RAYMOND XAVIER,
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Plaintiff,
vs.
S.M. ROCHE, et al.,
Defendants.
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No. CIV S-09-0783 LKK CKD P
ORDER
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Plaintiff is a California prisoner proceeding with counsel with an action filed
pursuant to 42 U.S.C. § 1983. Plaintiff’s second amended complaint was filed on May 24, 2011.
The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. 28
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U.S.C. § 1915A(b)(1),(2).
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In his second amended complaint, plaintiff alleges he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment by virtue of inadequate medical care.
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Plaintiff seeks damages and names the California Department of Corrections and Rehabilitation
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(CDCR) as the only defendant. However, CDCR is entitled to immunity from claims for
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damages under the Eleventh Amendment. Brown v. Cal. Dept. of Corrections, 554 F.3d 747,
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752 (9th Cir. 2009). Accordingly, plaintiff’s second amended complaint must be dismissed. The
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court will grant plaintiff leave to file a third amended complaint in which plaintiff names an
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appropriate defendant.
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Plaintiff is informed that the court cannot refer to a prior pleading in order to
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make plaintiff’s third amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This is because, as a
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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a third amended complaint, the original pleading
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no longer serves any function in the case. Therefore, in a third amended complaint, as in an
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original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s second amended complaint is dismissed; and
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2. Plaintiff is granted thirty days from the date of service of this order to file a
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third amended complaint that complies with the requirements of this order, the Civil Rights Act,
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the Federal Rules of Civil Procedure, and the Local Rules of Practice; the third amended
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complaint must bear the docket number assigned this case and must be labeled “Third Amended
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Complaint”; failure to file a third amended complaint in accordance with this order will result in
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a recommendation that this action be dismissed.
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DATED: August 3, 2011
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/s/ Carolyn K. Delaney
United States Magistrate Judge
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xavi0783.14
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