Wilson v. Wever et al

Filing 55

ORDER signed by Magistrate Judge Craig M. Kellison on 11/15/2011 ORDERING that plaintiff's second amended complaint is DISMISSED without prejudice; and plaintiff shall file a complete amended complaint within 30 days. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEE WILSON, 12 13 14 15 16 17 18 19 No. CIV S-09-2191-LKK-CMK-P Plaintiff, vs. ORDER SANDRA LEE WEVER, et al., Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s second amended complaint (Doc. 54). As a general rule, an amended complaint supersedes the original complaint. See 20 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 21 amend, all claims alleged in the original complaint which are not alleged in the amended 22 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, the 23 court cannot refer to a prior pleading in order to make an amended complaint complete. See 24 Local Rule 220. An amended complaint must be complete in itself without reference to any prior 25 pleading. See id. Here, plaintiff states in the second amended complaint: “All allegations in the 26 original and 1st amended complaint are still alleged.” Plaintiff then adds new factual allegations. 1 1 Because the practice of incorporating a prior pleading into an amended pleading is not allowed 2 the second amended complaint will be dismissed with leave to file a complete amended 3 complaint which does not reference any prior pleadings. Plaintiff is warned that failure to 4 comply with this order may result in the dismissal of the action. See Local Rule 110. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s second amended complaint (Doc. 54) is dismissed without 2. Plaintiff shall file a complete amended complaint ,which sets forth all 7 prejudice; and 8 9 10 allegations in a single pleading without reference to prior pleadings, within 30 days of the date of this order. 11 12 13 14 DATED: November 15, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 2

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