Xavier v. Roche et al

Filing 27

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