Reece v. Sisto et al

Filing 52

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/28/201 ORDERING if plaintiff wishes to pursue both an Eighth Amendment and a Fourteenth Amendment claim, he must file a second amended complaint within 30 days. If plaintiff does not file a second amended complaint within 30 days, the court will issue a screening order pursuant to 28 U.S.C. § 1915A in response to the first amended complaint.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES G. REECE,

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Plaintiff,

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No. 2:10-cv-0203-JAM-EFB P

v.

ORDER

D.K. SISTO, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. His original complaint alleged that defendants Sisto and Mimis violated

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plaintiff’s rights under the Eighth and Fourteenth Amendments by failing to provide him with

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adequate heat and warmth. ECF No. 6. The court granted defendants’ motion to dismiss the

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Eighth Amendment claim and informed plaintiff he could either proceed solely on the Fourteenth

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Amendment claim or file an amended complaint curing the defects in the Eighth Amendment

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claim. ECF No. 49. Plaintiff responded by filing an amended complaint alleging only an Eighth

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Amendment claim. ECF No. 50. He appears to believe that he need not re-allege the Fourteenth

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Amendment claim because, as he explains it, the defendants “lost their objection” thereto and the

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court has the relevant “documents in its possession.” ECF No. 50 at 33. Plaintiff is mistaken.

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An amended complaint supersedes any earlier filed complaint, and once an amended

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complaint is filed, the earlier filed complaint no longer serves any function in the case. See

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Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes

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the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967)). Therefore, when a plaintiff is allowed to amend his complaint, he must

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write or type the amended complaint so that it is complete in itself without reference to any earlier

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filed complaint. E.D. Cal. L.R. 220. That is, plaintiff must file a single amended complaint that

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includes all information relevant to his claim(s).

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If plaintiff wishes to pursue both an Eighth Amendment and a Fourteenth Amendment

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claim, he must file a second amended complaint within 30 days of the date of this order. If

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plaintiff does not file a second amended complaint within 30 days, the court will issue a screening

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order pursuant to 28 U.S.C. § 1915A in response to the first amended complaint.

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So ordered.

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DATED: April 28, 2015.

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