Contreras v. National Guard Bureau et al

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/22/15 ORDERING that:Plaintiff's request for leave to proceed in forma pauperis, ECF No. 2 , is granted; Plaintiff's motion to amend, ECF No. 3 , is denied as unnecessary; and Plai ntiff is granted thirty days from the date of service of this order to file an amended complaint. The amended complaint must bear the docket number assigned to this case and must be labeled "First Amended Complaint." If plaintiff fails to file an amended complaint, the court will screen plaintiff's original complaint. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRACIELA M. CONTRERAS,

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No. 2:14-cv-1282-MCE-EFB PS

Plaintiff,
v.

ORDER

GEN. FRANK J. GRASS, et al.,
Defendants.

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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 requests

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authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, and has submitted the

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affidavit required thereunder which demonstrates that plaintiff is unable to prepay fees and costs

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or give security for them. See ECF No. 2. Accordingly, the request to proceed in forma pauperis

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is granted. 28 U.S.C. § 1915(a).

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

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

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. After

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plaintiff initiated this action, plaintiff filed a letter with the court indicating that she wanted to

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assert claims against an additional defendant. ECF No. 3. The court construes plaintiff’s letter as

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a motion to amend the complaint.
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Federal Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading

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once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to

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which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days

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after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” As plaintiff has not

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previously amended her complaint and a responsive pleading has not been filed, plaintiff may

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amend her complaint as a matter of course and leave of court is not needed. However, Local Rule

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220 requires that “every pleading to which an amendment or supplement is permitted as a matter

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of right or has been allowed by court order shall be retyped and filed so that it is complete in itself

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without reference to the prior or superseded pleading.” E.D. Cal. L.R. 220. Thus, for plaintiff to

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add an additional, she must submit an amended complaint that is complete in and of itself without

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reference to the previous complaint or any other pleading, attachment, or document.

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In light of plaintiff’s indication that she wants to file an amended complaint, the court will

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defer screening the original complaint until plaintiff has filed an amended complaint. Plaintiff is

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directed to file her amended complaint within 30 days of the date of service of this order. If

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plaintiff fails to do so, the court will screen plaintiff’s original complaint.

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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 compliant be complete

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

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compliant. 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 compliant which are not alleged in the

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amended complaint,” London v. Coopers & Lybrand, 644 F.2d 881, 814 (9th Cir. 1981), and

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defendants not named in an amended complaint are no longer defendants. Ferdik v. Bonzelet, 963

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

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Accordingly, it is hereby ORDERED that:

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

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2. Plaintiff’s motion to amend, ECF No. 3, is denied as unnecessary; and

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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 “First Amended Complaint.” If plaintiff fails to file an amended complaint, the court

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will screen plaintiff’s original complaint.

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DATED: June 22, 2015.

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