Segura v. McDonald, et al

Filing 25

ORDER signed by Magistrate Judge Allison Claire on 1/15/14 ORDERING that 21 Motion to Amend the Complaint is GRANTED; Plaintiff shall file a second amended complaint within thirty days from the date of service of this order; and Plaintiffs second amended complaint must be signed in accordance with Fed. R. Civ. P. 11(a) and L.R. 131(b).(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE LUIS SEGURA,

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No. 2:13-cv-0393 AC P

Plaintiff,
v.

ORDER

MICHAEL MCDONALD, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983. On

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March 22, 2013, plaintiff’s complaint was dismissed with leave to amend. ECF No. 5. Plaintiff

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filed an amended complaint, ECF No. 13, which the court found appropriate for service upon

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defendants McDonald and Villanueva. ECF No. 13 (order filed June 21, 2013). Upon plaintiff’s

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submission of the documents necessary for service, the undersigned directed the U.S. Marshal to

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serve the first amended complaint. ECF No. 15 (order filed July 25, 2013). Although no executed

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waivers of service have been filed, on October 14, 2013 defendant McDonald sought and was

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granted a 45-day extension of time to file a response to the amended complaint. ECF Nos. 19

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(request), 20 (order filed October 28, 2013). On November 1, 2013, plaintiff filed a motion for

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leave to file a second amended complaint. ECF No. 21

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The basis for plaintiff’s motion to amend is that he has subsequently acquired information

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that leads him to believe he has not named the correct defendants in his first amended complaint.
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ECF No. 21. Defendants Villanueva and McDonald have filed a statement of non-opposition.1

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ECF No. 22. The primary basis for their lack of objection to further amendment is their

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contention that plaintiff’s name had been signed on the first amended complaint by a jailhouse

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lawyer and not by plaintiff himself, rendering it defective. Id., citing Fed. R. Civ. P. 11(a)

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(requiring that every pleading or written motion be signed by an attorney or, if unrepresented, the

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party himself) and L.R. 131(b). In his reply, plaintiff invokes the provisions of Fed. R. Civ. P.

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15(a)(1),2 noting defendants’ lack of objection to a further amended complaint but contending

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that he had no need to seek defendants’ consent in the present circumstances. ECF No. 23.

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Plaintiff’s motion itself, however, is defective inasmuch as he has failed to provide a

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proposed second amended complaint for the court to evaluate. As a litigant proceeding in forma

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pauperis, plaintiff’s pleadings are subject to review by this court pursuant to the in forma pauperis

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statute. See 28 U.S.C. § 1915. Nevertheless, the court will grant plaintiff’s unopposed motion

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for leave to amend under Fed. R. Civ. P. 15(a). The second amended complaint will, of course,

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be subject to screening by the court. 28 U.S.C. § 1915A(a).

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Although no executed waivers of service have been filed, defendants in their statement of nonopposition to plaintiff’s motion to amend assert that “more than twenty-one days have passed
since defendants were served. . . .” Therefore, by virtue of the statement of non-opposition made
on behalf of both defendants, the court finds that both defendants have appeared, or at a
minimum, have waived service.
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Under Fed. R. Civ. P. 15(a) (1):
[a] party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(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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Fed. R. Civ. P. 15(a) (2) applies to “all other cases” and sets forth that:
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a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give
leave when justice so requires.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make

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plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be

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

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amended complaint supersedes the original complaint. See Lacey v. Maricopa County, 693 F.3d

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896, 927 (9th Cir. 2012) ) (“the general rule is that an amended complaint super[s]edes the

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original complaint and renders it without legal effect... .”) Once plaintiff files an amended (or

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further amended) complaint, the previous pleadings no longer serve any function in the case.

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Therefore, in an amended complaint as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged. Although the allegations of this pro se complaint

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are held to “less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner,

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404 U.S. 519, 520 (1972) (per curiam), plaintiff is required to comply with the Federal Rules of

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Civil Procedure and the Local Rules of the Eastern District of California.

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Accordingly, IT IS ORDERED that:

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1.

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(ECF No. 21) is granted;
2.

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Plaintiff’s unopposed motion for leave to amend his first amended complaint

Plaintiff shall file a second amended complaint within thirty days from the date
of service of this order; and

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Plaintiff’s second amended complaint must be signed in accordance with Fed.
R. Civ. P. 11(a) and L.R. 131(b).

DATED: January 15, 2014

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