Harrell v. Hornbrook Community Services District, et al.

Filing 11

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/5/14 ORDERING that the Order to Show Cause, filed 10/9/14, 8 , is DISCHARGED. Plaintiff's MOTION to Amend, filed 10/30/14 9 is DENIED, as unnecessary. Service is appropriate for the following defendants: Hornbrook Community Services District, Hanson, Brown, Barnes, Winston, Bowles, Dingman, and Goff. The Clerk is directed to issue forthwith, and the U.S. Marshal is directed to serve within ninety days of the date of this order , all process pursuant to Fed. R. Civ. P. 4, including a copy of this courts status order, without prepayment of costs. The Clerk shall send plaintiff one USM-285 form for each defendant, one summons, a copy of the amended complaint, an appropriate form for consent to trial by a magistrate judge, and this court's status order. The Clerk is directed to serve a copy of this order on the USM, 501 I Street, Sacramento, Ca., 95814, Tel. No. [phone].(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER T. HARRELL,

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No. 2:14-cv-1595 KJM GGH PS

Plaintiff,
v.

ORDER

HORNBROOK COMMUNITY
SERVICES DISTRICT, et al.,
Defendants.

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Plaintiff is proceeding pro se with this civil rights action seeking relief pursuant to 42
U.S.C. §§ 1983, 1985, 1986, and 1988.
On October 9, 2014, this court issued an order to show cause why this action should not

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be dismissed for failure to serve. In response, plaintiff filed a motion to amend the complaint and

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an amended complaint on October 30, 2014. Therefore the order to show cause will be

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discharged.

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Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that:
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.
Id. Therefore, the motion to amend will be denied as unnecessary as the complaint has not yet
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been served.

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An amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended pleading is filed, the original pleading no longer serves

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any function in the case. Id.; see also L.R. 220 (every pleading to which an amendment is

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permitted as a matter of right shall be retyped and filed so that it is complete in itself without

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reference to the prior pleading.). Although the allegations of this pro se complaint are held to

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“less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S.

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519, 520 (1972) (per curiam), plaintiff is required to comply with the Federal Rules of Civil

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

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The amended complaint has now been screened. On the present record, plaintiff has

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stated a colorable claim for relief against defendants Hornbrook Community Services District,

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Hanson, Brown, Barnes, Winston, Bowles, Dingman, and Goff.1

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Good cause appearing, IT IS ORDERED that:

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1. The order to show cause, filed October 9, 2014, (ECF No. 8), is discharged.

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2. Plaintiff’s motion to amend, filed October 30, 2014, (ECF No. 9), is denied as

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unnecessary.

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3. Service is appropriate for the following defendants: Hornbrook Community Services
District, Hanson, Brown, Barnes, Winston, Bowles, Dingman, and Goff.

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4. The Clerk of the Court is directed to issue forthwith, and the U.S. Marshal is directed

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to serve within ninety days of the date of this order, all process pursuant to Fed. R. Civ. P. 4,

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including a copy of this court’s status order, without prepayment of costs.

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5. The Clerk of the Court shall send plaintiff one USM-285 form for each defendant, one

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summons, a copy of the amended complaint, an appropriate form for consent to trial by a

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magistrate judge, and this court’s status order.

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The amended complaint asserts that a state court action was filed on June 2, 2014, but that this
action seeks “different and additional relief, and of additional defendants,” than the superior court
case. (ECF No. 10 at 8.) The court has considered the possibility that abstention may prevent
this action from proceeding; however, it does not have enough facts on the limited record before
it to make this determination at the present time. Therefore, the case may proceed without
prejudice to such an argument being raised in a properly noticed motion.
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6. Plaintiff is directed to supply the U.S. Marshal, within 14 days from the date this order

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is filed, all information needed by the Marshal to effect service of process, and shall file a

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statement with the court that said documents have been submitted to the United States Marshal.

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The court anticipates that, to effect service, the U.S. Marshal will require at least:

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a. One completed summons for each defendant;

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b. One completed USM-285 form for each defendant;

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c. One copy of the endorsed filed amended complaint for each defendant, with an

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extra copy for the U.S. Marshal;
d. One copy of this court’s status order for each defendant; and
e. One copy of the instant order for each defendant.
7. In the event the U.S. Marshal is unable, for any reason whatsoever, to effectuate

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service on any defendant within 90 days from the date of this order, the Marshal is directed to

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report that fact, and the reasons for it, to the undersigned.

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8. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal,

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501 “I” Street, Sacramento, Ca., 95814, Tel. No. [phone].

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Dated: December 5, 2014

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Harrell1595.10

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