Burton v. McDonald, et al

Filing 31

ORDER signed by Magistrate Judge John F. Moulds on 7/1/11: Plaintiff's May 31, 2011 motion for appointment of counsel is denied without prejudice. Plaintiff's June 3, 2011 motion to amend is granted. Plaintiff's second amended complain t is dismissed. This court's May 26, 2011 order directing the United States Marshal to serve process in this action is vacated. The Clerk of the Court is directed to serve a copy of this order on the United States Marshal. Plaintiff's June 15, 2011 motion for production of documents is construed as a request for production of documents and, so construed, is disregarded. (Kaminski, H)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8

HARRISON L. BURTON,
Plaintiff,

9
10
11
12
13
14
15
16

No. 2:10-cv-1980 JAM JFM (PC)

vs.
WARDEN MCDONALD, et al.,
Defendants.

ORDER
/

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
42 U.S.C. § 1983. Several matters are pending before the court.
This action is proceeding on plaintiff’s second amended complaint, filed April 27,

17

2011. On May 26, 2011, the court ordered the United States Marshal to serve process on

18

defendants Moore, A. Romero, and Webster. On June 3, 2011, plaintiff filed a motion for leave

19

to amend his complaint. In the motion, which is not accompanied by a proposed amended

20

complaint, plaintiff represents that he has learned that the correct name of the defendant

21

identified as Lt. Romero is Lt. Tony Amero. Good cause appearing, plaintiff’s motion to amend

22

will be granted. Plaintiff will be granted twenty days from the date of this order to file a third

23

amended complaint that amends said defendant’s name in all places. Plaintiff is informed that

24

the court cannot refer to the second amended complaint in order to make plaintiff’s third

25

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

26

in itself without reference to any prior pleading. This is because, as a general rule, any amended
1

1

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

2

Once plaintiff files an amended complaint, prior pleadings no longer serve any function in the

3

case. Therefore, in the third amended complaint, as in an original complaint, each claim and the

4

involvement of each defendant must be sufficiently alleged. In view of this order, the court’s

5

May 26, 2011 order directing the United States Marshal to serve process on defendants will be

6

vacated. The court will make further orders for service of process, as appropriate, after plaintiff

7

files a third amended complaint.

8
9

On May 31, 2011, plaintiff filed a motion requesting that the court appoint
Charles Carbone, Attorney at Law, 2940 16th Street, Suite B5, San Francisco, CA 94103, to

10

represent him in this action. The United States Supreme Court has ruled that district courts lack

11

authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United

12

States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court

13

may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v.

14

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

15

(9th Cir. 1990). There is no indication in plaintiff’s motion whether Mr. Carbone is willing to

16

undertake representation of plaintiff in this action. Plaintiff’s request for the appointment of

17

counsel will therefore be denied without prejudice.

18

On June 15, 2011, plaintiff filed a document styled as a motion for production of

19

documents from defendants. Review of the documents demonstrates that it is a request for

20

production of documents pursuant to Fed. R. Civ. P. 34. Plaintiff is informed that court

21

permission is not necessary for discovery requests and that neither discovery requests served on

22

an opposing party nor that party's responses should be filed until such time as a party becomes

23

dissatisfied with a response and seeks relief from the court pursuant to the Federal Rules of Civil

24

Procedure. Discovery requests between the parties shall not be filed with the court unless, and

25

until, they are at issue. For that reason, plaintiff’s June 15, 2011 request for production of

26

documents will be placed disregarded.
2

1

In accordance with the above, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s May 31, 2011 motion for appointment of counsel is denied without

3

prejudice.

4

2. Plaintiff’s June 3, 2011 motion to amend is granted.

5

3. Plaintiff’s second amended complaint is dismissed.

6

4. Within thirty days from the date of this order, plaintiff shall complete the

7

attached Notice of Amendment and submit the following documents to the court:

8

a. The completed Notice of Amendment; and

9

b. An original and one copy of the Third Amended Complaint.

10

Plaintiff’s third amended complaint shall comply with the requirements of the Civil Rights Act,

11

the Federal Rules of Civil Procedure, the Local Rules of Practice, and this order; the third

12

amended complaint must bear the docket number assigned this case and must be labeled “Third

13

Amended Complaint”; failure to file a third amended complaint in accordance with this order

14

may result in the dismissal of this action.
5. This court’s May 26, 2011 order directing the United States Marshal to serve

15
16

process in this action is vacated.
6. The Clerk of the Court is directed to serve a copy of this order on the United

17
18

States Marshal.
7. Plaintiff’s June 15, 2011 motion for production of documents is construed as a

19
20

request for production of documents and, so construed, is disregarded.

21

DATED: July 1, 2011.

22
23
24
25

12;burt1980.31(2)

26
3

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE EASTERN DISTRICT OF CALIFORNIA

7

HARRISON L. BURTON,
Plaintiff,

8
9
10

vs.
WARDEN MCDONALD, et al.,

____________________________________/
Plaintiff hereby submits the following document in compliance with the court’s

13
14

order filed

:
______________

15
16

NOTICE OF AMENDMENT

Defendants.

11
12

No. 2:10-cv-1980 JAM JFM (PC)

Third Amended Complaint

DATED:

17
18
19
Plaintiff

20
21
22
23
24
25
26
4