Herrera v. Statti

Filing 40

ORDER signed by Magistrate Judge Dale A. Drozd on 08/23/12 ordering that plaintiff's request to add additional allegations to his amended complaint 37 is denied. (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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ROBERTO HERRERA,

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Plaintiff,

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vs.

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No. 2:10-cv-1154 MCE DAD P

P. STATTI, et al.,

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Defendants.

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/

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ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42
U.S.C. § 1983.
By way of background, on July 20, 2012, the court screened plaintiff’s amended

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complaint and found that it appeared to state an Eighth Amendment excessive use of force claim

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against defendants Wheeler, Clement, Micone, and Harrison as well as an Eighth Amendment

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inadequate medical care claim against defendant Medina. The court also found, however, that

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the complaint failed to state a cognizable Eighth Amendment inadequate medical care claim

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against named defendants Johnson, Kissinger, Marsh, and Pena.

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Plaintiff has since filed a request to add additional allegations to his amended

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complaint against defendants Johnson, Kissinger, Marsh, and Pena in what appears to be an

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attempt to state a cognizable Eighth Amendment inadequate medical care claim against them.
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As the court recently advised plaintiff in his other pending action, see Case No.

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2:10-cv-1280 GEB DAD P, the court will not allow plaintiff to simply add parties and allegations

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to his amended complaint in this piecemeal fashion. Plaintiff has previously amended his

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complaint in this action once as a matter of right. If plaintiff wishes to further amend his

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complaint by adding parties or allegations, he will need to file a motion for leave to file a second

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amended complaint together with a proposed second amended complaint. See Fed. R. Civ. P.

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15(a). However, if plaintiff elects to file a motion to amend together with a proposed second

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amended complaint he is strongly cautioned that in any second 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. The court cannot refer to a prior pleading in order to make plaintiff’s second amended

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complaint complete. Local Rule 220 requires that an amended complaint be complete in itself

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without reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to add additional

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allegations to his amended complaint (Doc. No. 37) is denied.

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DATED: August 23, 2012.

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DAD:9
herr1154.sac

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