Davenport v. Korik, et al

Filing 12

ORDER signed by Magistrate Judge Dale A. Drozd on 05/22/15 ordering the clerk of the court is directed to send plaintiff a blank summons and 1 USM-285 form. Within 30 days, plaintiff shall submit to the court 1 of the following: The completed summons and USM-285 form required to effect service of the original complaint on defendant Rabbi Korik; or an amended complaint. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JAMES BOBBY DAVENPORT,

12
13
14

No. 2:14-cv-0325 TLN DAD P

Plaintiff,
v.

ORDER

KORIK, et al.,

15

Defendants.

16
17
18
19

Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42
U.S.C. § 1983.
By an order filed March 23, 2015, this court ordered plaintiff to complete and return to the

20

court, within thirty days, the USM-285 form and copies of his complaint which are required to

21

effect service on the defendant Rabbi Korik. (ECF No. 7.)

22

On April 27, 2015, plaintiff submitted the USM-285 form and copies of his complaint, but

23

failed to provide a complete address at which to serve defendant Korik on either the summons or

24

USM-285 form he submitted. (ECF No. 11.) Rather, plaintiff merely wrote in the space provided

25

“C.S.P. Sac,” which is insufficient.

26

On April 27, 2015, plaintiff also filed a motion to amend his complaint. (ECF No. 10.)

27

Therein plaintiff indicates a desire to name Tim Virga, Warden of California State Prison-

28

Sacramento, as an additional defendant in this action, and to dismiss at least one of his claims
1

1

against defendant Korik. Plaintiff also submitted a copy of a USM-285 form, with Warden

2

Virga’s name written in as defendant.

3

Plaintiff is advised as follows. Because his original complaint has not yet been served, he

4

has the right, under Federal Rule of Civil Procedure 15(a), to file an amended complaint.

5

However, the court would have to screen the amended complaint pursuant to 28 U.S.C.

6

§ 1915A(a) before ordering service on any defendants named therein, including Rabbi Korik

7

and/or Warden Virga. Plaintiff is informed that the court cannot refer to a prior pleading in order

8

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

9

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

10

amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

11

Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any

12

function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

13

and the involvement of each defendant must be sufficiently alleged.

14
15

Alternately, plaintiff may provide the court with a properly-completed USM-285 form and
summons, and proceed on his original complaint against defendant Rabbi Korik.

16

Accordingly, IT IS HEREBY ORDERED that:

17

1. The Clerk of the Court is directed to send plaintiff a blank summons and one USM-285

18

form.

19

2. Within thirty days, plaintiff shall submit to the court one of the following:

20

a. The competed summons and USM-285 form required to effect service of the

21

original complaint on defendant Rabbi Korik; or

22

b. An amended complaint that complies with the requirements of the Civil Rights

23

Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. Any

24

amended complaint must bear the docket number assigned this case and must be

25

labeled “Amended Complaint”; plaintiff must file an original and two copies of the

26

amended complaint.

27

////

28

////
2

1

3. Failure to return the documents within the specified time period will result in a

2

recommendation that this action be dismissed.

3

Dated: May 22, 2015

4
5
6
7

DAD:10/kly
dave0325.8f

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3