Burgos v. Fox et al

Filing 15

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/05/14 ordering plaintiff's amended complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file a second amended complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MANUEL BURGOS,

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No. 2:14-cv-1952 CKD P

Plaintiff,
v.

ORDER

K. FOX, et al.,
Defendants.

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Plaintiff is a recently released state prisoner seeking relief pursuant to 42 U.S.C. § 1983.

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Plaintiff has consented to all matters in this action being before a United States Magistrate Judge.

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See 28 U.S.C. § 636(c). On October 17, 2014, plaintiff’s complaint was dismissed with leave to

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file an amended complaint. Plaintiff has now filed his amended complaint.

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467
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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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As with plaintiff’s original complaint, plaintiff’s amended complaint fails to state a claim

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upon which relief can be granted. Plaintiff’s primary problem is he again fails to point to facts

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which adequately allege any defendant was deliberately indifferent to a known risk of serious

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physical harm or to serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 832 (1991)

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Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Plaintiff’s amended complaint must be

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dismissed. The court will give plaintiff one final opportunity to cure the defects in his claims. If

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plaintiff choses to draft a second amended complaint he should refer to the information given to

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him in the court’s October 17, 2014 order.

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

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

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed; and

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2. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules

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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff

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must file an original and two copies of the second amended complaint; failure to file a second
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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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Dated: December 5, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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