McDaniel v. The United States, et al

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 04/14/15 ORDERING that the 2 Motion to Proceed IFP is GRANTED; the 3 Motion to Amend the Complaint is DENIED as unnecessary; amended complaint due within 30 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TANYA McDANIEL,

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No. 2:14-cv-2213-TLN-EFB PS

Plaintiff,
v.

ORDER

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THE UNITED STATES, et al.,

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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 seeks

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leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915. Her declaration makes the

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showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. Accordingly, the request to

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proceed in forma pauperis 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. However, on

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March 24, 2015, plaintiff filed a motion for leave to file an amended complaint. ECF No. 3.

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Federal Rule of Civil Procedure 15(a)(1) 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
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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 once as a matter of course and leave of court is not needed. Accordingly,

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plaintiff’s motion to amend is denied as unnecessary.

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However, in light of plaintiff’s indication that she desires to file an amended complaint,

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the court will defer screening the original complaint until plaintiff has filed her amended

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complaint. Plaintiff is directed to file her amended complaint within 30 days of the date of

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service of this order. If plaintiff fails to do so, the court may screen plaintiff’s original compliant

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and/or recommend that this action be dismissed for failure to prosecute. See Fed. R. Civ. P.

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41(b); see also E.D. Cal. L.R. 110.

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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;

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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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may screen plaintiff’s original complaint and/or recommend that this action be dismissed for

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failure to prosecute. See Fed. R. Civ. P. 41(b); see also E.D. Cal. L.R. 110.

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DATED: April 14, 2015.

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