Edwards v. Clarey

Filing 15

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/9/12 ORDERING that the First Amended complaint is dismissed with leave to amend within 30 days. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID EDWARDS,
Plaintiff,

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ORDER

vs.

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No. 2:11-cv-1725 EFB P

Defendant.

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CLAREY,

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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. After a dismissal pursuant to 28 U.S.C. § 1915A, plaintiff filed an amended

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complaint. The amended complaint is dated January 24, 2012 and states “See Attached

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Statement of Claim,” but fails to attach any statement of his claim. Dckt. No. 11. Thereafter,

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plaintiff filed a document entitled “Verified Statement of Claim,”which is dated January 30,

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2012. Dckt. No. 12. Because the amended complaint includes no factual allegations to support a

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cognizable claim for relief, and is not complete in itself without reference to another pleading, it

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is dismissed with leave to amend.

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It appears from plaintiff’s multiple filings that he wishes to amend or add to his

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complaint in a piecemeal fashion through separate filings. Although the court granted plaintiff

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leave to amend in its initial screening order, the court informed plaintiff that any amended
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complaint must be complete in itself without reference to any prior pleading. Dckt. No. 8 at 3.

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Despite this instruction, plaintiff failed to write or type an amended complaint that is complete in

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itself without reference to any earlier filed complaint. See L.R. 220.

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Plaintiff may not amend his complaint in a piecemeal fashion by filing separate

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documents that are intended to be read together as a single complaint. This is because an

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

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

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

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the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967)).

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Although plaintiff’s allegations are held to “less stringent standards than formal

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pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), plaintiff

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

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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 the

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

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Because the first amended complaint consists essentially of exhibits alone, and does not

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include the referenced “Statement of Claim,” it fails to allege facts sufficient to state a claim

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upon which relief may be granted. See 28 U.S.C. § 1915A. Any amended complaint must

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correct the deficiencies identified herein, as well as those identified in the court’s January 4,

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2012 screening order.

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Accordingly, IT IS HEREBY ORDERED that the first amended complaint is dismissed

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with leave to amend within 30 days. The amended complaint must bear the docket number

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assigned to this case and be titled “Second Amended Complaint.” Failure to comply with this

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order will result in a recommendation that this action be dismissed. If plaintiff files an amended

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complaint stating a cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: August 9, 2012.

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