Cruz v. Michaels et al

Filing 54

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/22/2012 ORDERING the Clerk to SRIKE plaintiff's 4/20/2012 filing; the parties may conduct discovery until 1/28/2013; no further amendments to pleadings are permitted except with leave of court, good cause having been shown; dispositive motions shall be filed on or before 3/28/2013; the court will schedule pretrial proceedings if necessary. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL CRUZ,
Plaintiff,

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vs.

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No. 2:10-cv-1162 KJM EFB P

MICHAELS, et al.,

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Defendants.

ORDER
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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. Before the court is plaintiff’s April 20, 2012 “amended complaint.” For the

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reasons stated below, the document will be stricken. The court will also set new deadlines for

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discovery and dispositive motions.

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This action proceeds on the January 24, 2011 amended complaint on plaintiff’s claims

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against defendants Reynolds, Clark, Mallet and Brown. See Complaint (Dckt. No. 21); March

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13, 2012 Order (“Dckt. No. 48”). On March 13, 2012, the court dismissed defendant Walker

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from this action, but granted plaintiff leave to file an amended complaint in an attempt to state a

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claim against Walker. Dckt. No. 48. Plaintiff then filed an “amended complaint” naming

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Walker as the sole defendant, and asking the court to “reconsider” the dismissal of defendant

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Walker. Dckt. No. 50.
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Plaintiff is hereby reminded that when a plaintiff is allowed to amend his complaint, he

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must re-write or re-type it so that it is complete in itself without reference to any earlier filed

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complaint. L.R. 220; see also Dckt. No. 10 at 4. This is because an amended complaint

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supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed

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complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467,

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1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated

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thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).

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Although plaintiff’s allegations are held to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam),

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plaintiff is required to comply with the Federal Rules of Civil Procedure and the Local Rules of

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the Eastern District of California. See McNeil v. United States, 508 U.S. 106, 113 (1993)

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(procedural requirements apply to all litigants, including prisoners lacking access to counsel);

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L.R. 183(a) (“Any individual representing himself or herself without an attorney is bound by

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the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law.”).

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The “complaint” plaintiff filed on April 20, 2012 concerns only plaintiff’s allegations

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against defendant Walker. It cannot be considered as an amended complaint because it is not

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complete in itself without reference to the original complaint. Nor is the filing a supplemental

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complaint within the meaning of Rule 15(d) of the Federal Rules of Civil Procedure.

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Accordingly, the court will strike plaintiff’s April 20, 2012 filing.

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Having reviewed the April 20th filing, the court finds that further leave to amend would

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be futile. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] district court should

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grant leave to amend even if no request to amend the pleading was made, unless it determines

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that the pleading could not be cured by the allegation of other facts.”). In an attempt to state a

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claim against Walker, plaintiff alleges that Walker was deliberately indifferent to his serious

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medical needs by screening out or “roadblocking” plaintiff’s administrative appeals. Plaintiff

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submits copies of Walker’s responses to his administrative appeals. The responses inform
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plaintiff that because of defects in his appeals, they will not be processed. There are no

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constitutional requirements regarding how a grievance system is operated, and plaintiff fails to

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show that in screening out his administrative appeals, Walker acted with the requisite deliberate

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indifference for an Eighth Amendment claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th

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Cir. 2003) (holding that prisoner’s claimed loss of a liberty interest in the processing of his

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appeals does not violate due process because prisoners lack a separate constitutional entitlement

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to a specific prison grievance system). Plaintiff also alleges that Walker’s subordinates chose

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an easier and less effective course of treatment for plaintiff. As plaintiff is aware, however, he

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may not sue a supervisor on the theory that the supervisor is liable for the acts of his or her

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subordinates. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Rather, a supervisor may

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be held liable only in his or her individual capacity “‘for his own culpable action or inaction in

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the training, supervision or control of his subordinates.’” Watkins v. City of Oakland, 145 F.3d

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1087, 1093 (9th Cir. 1998) (quoting Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991)).

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Plaintiff fails to sufficiently allege how defendant Walker was personally involved in violating

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his Eighth Amendment rights. Despite an opportunity to amend, plaintiff appears unable to

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cure the defects in his claim against Walker. Therefore, the court will not grant plaintiff further

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leave to amend.
This case has now been pending for over two years and on November 4, 2011, the court

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stayed the deadlines for discovery and dispositive motions. Dckt. No. 42. New deadlines for

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discovery and dispositive motions are set forth below.

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Accordingly, the court hereby ORDERS that:

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1. The Clerk of the Court shall strike plaintiff’s April 20, 2012 filing (Dckt. No. 50).

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2. The parties may conduct discovery until January 28, 2013. Any motions necessary to

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compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ.

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P. 31, 33, 34, or 36 shall be served not later than November 28, 2012.

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3. No further amendments to pleadings are permitted except with leave of court, good

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cause having been shown. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th

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Cir. 1992).

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4. Dispositive motions shall be filed on or before March 28, 2013. Motions shall be
briefed in accordance with paragraph 7 of the order filed November 2, 2010.

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5. The court will schedule pretrial proceedings, if necessary, upon the resolution of any

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pretrial motions filed. Requests to modify this schedule will be looked upon with disfavor and

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must be supported by good cause pursuant to Fed. R. Civ. P. 16(b).

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DATED: October 22, 2012.

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