Moncrief v. California Department of Corrections and Rehabiliation et al

Filing 10

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/10/2012, ORDERING that the 9/13/12 hearing is VACATED; defendants' 8 motion to dismiss is VACATED; within 21 days, defendants shall file either (1) a motion to dismiss the first amended complaint, or (2) an answer to the first amended complaint. (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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JOHN PHILIP MONCRIEF,

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Plaintiff,

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No. 2:12-cv-0414 GGH P

vs.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.

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Defendants.

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ORDER
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Plaintiff is a state prisoner who now proceeds through counsel with a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on February 16, 2012,

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and paid the filing fee.

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On May 24, 2012, this court found that plaintiff’s original complaint stated a
cognizable claim against both defendants and ordered the complaint served. See Doc. No. 4.

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In his original complaint, plaintiff alleged, among other things, that the

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defendants, and their agents, failed to accommodate plaintiff’s medical disability, were

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deliberately indifferent to plaintiff’s medical needs, and intentionally failed to provide plaintiff

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with adequate medical care. See Doc. No. 1. Plaintiff raised claims under the American with

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Disabilities Act, the Eighth and Fourteenth Amendments, and state law. Id. Plaintiff sought

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injunctive relief and damages. Id.

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On August 14, 2012, defendants California Department of Corrections and

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Rehabilitation (“CDCR”), Randy Grounds, and Gary Swarthout moved to dismiss the complaint

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under Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 8. The motion was not filed on

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behalf of defendant James D. Hartley because, according to the moving defendants, there was no

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evidence that defendant Hartley had been served with process and because he had not sought

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representation by the Attorney General. See Doc. No. 8-1 at 1, n.1. The motion to dismiss is

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currently calendared for hearing before the undersigned on September 13, 2012. See Doc. No. 8.

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Plaintiff has not filed an opposition to the motion, but has instead filed an amended complaint.

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See Doc. No. 9.

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The Amended Complaint

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A properly filed amended complaint supersedes the original complaint. See, e.g.,

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 321

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(1992); see also Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir.2008), cert. denied sub nom.,

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McDaniel v. Sechrest, –––U.S. ––––, 130 S.Ct. 243, 175 L.Ed.2d 241 (2009) (amendment of a

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complaint constitutes waiver of claims not carried over from previous versions of the complaint).

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Under Federal Rule of Civil Procedure 15, a plaintiff is entitled to amend his complaint once as a

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matter of right within 21 days of service of a defendant’s Rule 12(b) motion. See Fed. R. Civ. P.

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15(a)(1)(B). Under Federal Rule of Civil Procedure 6(d), three additional days are added to this

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deadline.

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In this case, defendants filed their Rule 12(b) motion on August 14, 2012, making

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September 10, 2012 the deadline for plaintiff to file his amended pleading. Plaintiff filed his first

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amended complaint on September 4, 2012, and it is therefore timely filed and filed as of right

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under Federal Rule of Civil Procedure 15(a)(1)(B).

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Summary of the Amended Complaint

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Plaintiff alleges that he is a disabled prisoner currently housed at the California
Medical Facility (“CMF”) in Vacaville, California. See Doc. No. 9 at ¶ 1. He alleges that he is a
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Chronic Medical Patient with severe chronic obstructive pulmonary disease, as well as other

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medical issues. Id. at ¶ 16. As of November 2010, plaintiff, who had received medical chronos

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restricting his housing and environment, was restricted to being housed on the ground floor,

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having a bottom bunk, and not being required to ascend or descend stairs. Id.

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On or about November 18, 2010, plaintiff was being transferred from Avenal

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State Prison (“ASP”), and the bus stopped overnight at Correctional Training Facility (“CTF”) in

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Soledad, California. Doc. No. 9 at 17. While at CTF, plaintiff was housed on the third floor. Id.

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at 18. When plaintiff was woken, he was directed downstairs, and between the second and third

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floors, fell six or seven stairs to the next level and was knocked unconscious. Id. at 19. Plaintiff

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alleges that he suffered severe spinal and head injuries including: a subdural hematoma, post-

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concussion syndrome, a 70% compression of T12 and additional injuries of T11 and L1, and a

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broken back in three places. Id. at 20. During subsequent transport between Stanford Hospital

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and Solano State Prison (“SSP”), plaintiff became paralyzed. Id. at 22.

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After treatment at various hospitals, plaintiff spent between 3 and 5 months at

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CTF, and some feeling in his limbs returned. See Doc. No 9 at ¶¶ 24-25. A specialist

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determined that plaintiff needed to be in a wheelchair. Id. at ¶ 25. Plaintiff was transferred to

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CMF in May 2011. Id. at 26. At CTF and CMF, plaintiff has been housed in general population.

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Id. at ¶¶ 25-26.

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Plaintiff now raises claims for relief under the Americans with Disabilities Act,

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the Rehabilitation Act, the Eighth and Fourteenth Amendments, and state law. As defendants,

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plaintiff names: the CDCR; Randy Grounds, warden at CTF; Gary Swarthout, warden at SSP;

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and Does 1-50. Doc. No. 9 at ¶¶ 9-11. Defendants Grounds and Swarthout are sued in their

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individual capacities. Id. at ¶¶ 10-11. Plaintiff seeks money damages and injunctive relief. Id. at

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p. 10.

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Discussion

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A review of the court’s docket reflects that all defendants named in the amended

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complaint have appeared in the action. See Doc. No. 8. Further review reflects that plaintiff has

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served the amended complaint on the defendants. See Doc. No. 9; Fed. R. Civ. Proc. 5.

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Accordingly, because there is no need to issue a further summons or to direct service of the

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amended complaint, the court will direct defendants either to file a motion to dismiss the first

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amended complaint, or to answer the first amended complaint, within 21 days after entry of this

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order.

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

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1. The hearing scheduled for September 13, 2012 is vacated.

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2. Defendants’ motion to dismiss, filed August 14, 2012, is vacated.

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3. Within 21 days after entry of this order, defendants shall file either (1) a

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motion to dismiss the first amended complaint; or (2) an answer to the first amended complaint.

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DATED: September 10, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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