White v. State of California

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/30/2012, ORDERING that plaintiff's 3 request to proceed IFP is GRANTED; plaintiff to pay the $350.00 filing fee to be collected in accordance with the concurrent CDC notice; plaintif f's requests to add exhibits and information to his complaint are DENIED; plaintiff has leave to amend the complaint once as a matter of course; within 30 days, plaintiff may file a first amended complaint; and the clerk is to send one civil rights complaint form to plaintiff. (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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DAVID LEE WHITE,
Plaintiff,

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vs.

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No. 2:12-cv-1552 EFB P

STATE OF CALIFORNIA,
Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil

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action. Plaintiff commenced this action with a complaint on March 14, 2012. Dckt. No. 1.

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Thereafter, he re-filed one page of the original complaint, along with a new page including a

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“statement of cause of action.” Dckt. No. 4. He then submitted a third filing purporting to add

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exhibits to his original complaint. Dckt. No. 5. Plaintiff also requested leave to proceed in

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forma pauperis. Dckt. No. 3.

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I.

Request to Proceed In Forma Pauperis

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Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Dckt. No. 3. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and

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(2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to

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collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).
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II.

The Complaint and Related Filings
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. Rule 15(a)(1) of the Federal Rules of

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Civil Procedure provides that:

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A party may amend its pleading once as a matter of course within:

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(A) 21 days after serving it, or

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(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.

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When a plaintiff is allowed to amend his complaint, however, he must write or type the amended

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complaint so that it is complete in itself without reference to any earlier filed complaint. L.R.

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220. Thus, 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. If plaintiff wishes to add,

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omit, or correct information in the operative complaint, he must file an amended complaint that

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is complete within itself. This is because an amended complaint supersedes any earlier filed

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complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves

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any function in the case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the

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“‘amended complaint supersedes the original, the latter being treated thereafter as

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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

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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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Here, because plaintiff has not previously amended the complaint and no responsive

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pleading has been served in this action, plaintiff has leave to file an amended complaint as a

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matter of course. See Fed. R. Civ. P. 15(a)(1). Plaintiff may therefore file a single amended

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complaint that includes all information relevant to his claim(s).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). In any amended complaint, plaintiff must allege with

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at least some degree of particularity overt acts which defendants engaged in that support

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plaintiff's claim. Id. Any amended complaint shall clearly set forth the claims and allegations

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against each defendant, and must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). Any amended complaint must also

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contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the California Department of Corrections and Rehabilitation filed

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concurrently herewith.

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3. Plaintiff’s requests to add exhibits and information to his complaint are denied.

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4. Plaintiff is informed that he has leave to amend the complaint once as a matter of

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course.

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5. Within 30 days from the date of service of this order, plaintiff may file a First

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Amended Complaint using the court’s form. The amended complaint, if any, must bear the

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docket number assigned to this case and be titled “First Amended Complaint.”

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6. The Clerk of the Court shall send one civil rights complaint form to plaintiff.
DATED: July 30, 2012.

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