Perryman v. Duffy

Filing 12

ORDER signed by Magistrate Judge Dale A. Drozd on 1/26/15 ORDERING that 9 Motion to Proceed IFP is DENIED without prejudice. Plaintiff is granted 30 days from the date of service of this order to file a completed affidavit in support of his req uest to proceed in forma pauperis on the form provided by the Clerk of Court, and a certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint. Plaintiff is granted thirty days f rom the date of service of this order to file a first amended complaint that is complete in and of itself. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner, the court's form civil rights complaint and accompanying instructions, and copies of the complaint 1 and the document entitled Corrections to Complaint 10 for his reference.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID PERRYMAN,

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No. 2:15-cv-0018 DAD P

Plaintiff,

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v.

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DUFFY, Warden,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983. On January 5, 2015, concurrently with the filing of his complaint, plaintiff filed

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an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Upon

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review, the court determined that the application was incomplete. Accordingly, on January 15,

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2015, the court filed an order granting plaintiff 30 days in which to submit (i) a completed

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affidavit in support of his application to proceed in forma pauperis and (ii) a certified copy of his

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prison trust account statement for the six month period immediately preceding the filing of his

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complaint. (ECF No. 8.) That same day, plaintiff filed another application to proceed in forma

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pauperis, which, as with his previous application, omitted both the required affidavit as well as a

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certified copy of his prison trust account statement. (ECF No. 9.) Accordingly, the court will

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deny the application filed on January 15, 2015, and grant plaintiff an additional 30 days to submit

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a properly completed application.
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On January 21, 2015, plaintiff filed a document with the court entitled “Corrections to

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Complaint,” in which he sets forth five pages of modifications to his original complaint. (ECF

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No. 10.) Plaintiff is informed that the court cannot refer to a prior pleading in order to make

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plaintiff's complaint complete. Local Rule 220 requires that a complaint be complete in itself

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without reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Accordingly, plaintiff will be granted leave to file a first amended complaint reflecting any

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corrections that he believes must be made to the allegations of his initial complaint in this action.

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Plaintiff is advised that if he elects to file a first amended complaint, Local Rule 220 requires that

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an amended complaint be complete in itself without reference to any prior pleading. Therefore, in

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any first amended complaint, as in plaintiff’s original complaints, each claim and the involvement

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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 application to proceed in forma pauperis (ECF No. 9) is denied without

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prejudice.

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

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affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk

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of Court, and a certified copy of his prison trust account statement for the six month period

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immediately preceding the filing of the complaint. Plaintiff’s failure to comply with this order

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will result in a recommendation that this action be dismissed without prejudice.

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

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amended complaint that is complete in and of itself. The first amended complaint must be

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prepared on the form provided with this order, must bear the docket number assigned this case,

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and must be labeled “First Amended Complaint.” If plaintiff does not timely file a first amended

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complaint, the court will proceed to screen his original complaint without considering the later-

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filed document entitled “Corrections to Complaint.”

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4. The Clerk of the Court is directed to send plaintiff (a) a new Application to Proceed In
Forma Pauperis By a Prisoner, (b) the court's form civil rights complaint and accompanying
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instructions, and (c) copies of the complaint (ECF No. 1) and the document entitled “Corrections

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to Complaint” (ECF No. 10) for his reference.

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Dated: January 26, 2015

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DAD:10
perr0018.3e

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