Celentano v. American with Disabilities Office et al

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/24/12 GRANTING 2 Motion to Proceed IFP and GRANTING 3 Motion to defer screening; amended complaint due within 30 days. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGIA A. CELENTANO,
Plaintiff,

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No. CIV 11-3456 JAM EFB PS

vs.

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AMERICANS WITH DISABILITIES
(ADA) OFFICE, SACRAMENTO
SUPERIOR COURT; SHELLEYANNE
W.L. CHANG, SACRAMENTO
SUPERIOR COURT, and ROES 1-10,

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Defendants.

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ORDER
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This case, in which plaintiff is proceeding in propria persona, was referred to the

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undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. Plaintiff’s

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declaration makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, the

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request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

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Determining plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court is directed to dismiss the case at any time if it

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determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune
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defendant. However, on January 24, 2012, plaintiff filed a request for this court to delay

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consideration of the sufficiency of her action until an amended complaint is filed. Dckt. No. 3.

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Plaintiff indicated therein that she intends to amend her complaint, but needs an additional thirty

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days within which to do so. Id. at 3.

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In light of plaintiff’s representation that she intends to file an amended complaint,

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plaintiff’s request to defer screening will be granted and plaintiff’s original complaint will not be

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screened or served at this time. However, plaintiff is directed to file her amended complaint

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within 30 days of the date of service of this order. If plaintiff fails to do so, the undersigned may

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screen plaintiff’s original complaint and/or dismiss this case for failure to prosecute. See Fed. R.

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Civ. P. 41(b); see also Local Rule 110.
Plaintiff is reminded that the court cannot refer to prior pleadings in order to make an

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

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in itself. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files

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an amended complaint, the original no longer serves any function in the case. Therefore, “a

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plaintiff waives all causes of action alleged in the original complaint which are not alleged in the

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amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and

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defendants not named in an amended complaint are no longer defendants. Ferdik v. Bonzelet,

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963 F.2d 1258, 1262 (9th Cir. 1992).

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis, Dckt. No. 2, is granted.

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2. Plaintiff’s request that this court defer screening her complaint, Dckt. No. 3, is

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granted.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and must

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be labeled “Amended Complaint.” Plaintiff must file an original and two copies of the amended
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complaint. If plaintiff fails to file an amended complaint, the undersigned may screen plaintiff’s

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original complaint and/or dismiss this case for failure to prosecute. See Fed. R. Civ. P. 41(b);

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see also Local Rule 110.

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DATED: February 24, 2012.

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