Logan v. Horwitz, et al.

Filing 50

ORDER signed by Magistrate Judge Allison Claire on 2/10/16 ordering plaintiff's first amended complaint and plaintiff's requests to amend or add to the complaint 40 , 42 , 44 , 45 are disregarded. Plaintiff's motions for extensi on 36 , 39 , 41 , 46 , 48 are denied as moot. Within 30 days of service of this order, plaintiff shall submit an original and 1 copy of the amended complaint. The clerk of the court is directed to send plaintiff a copy of the prisoner civil rights complaint used by this district. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES DAVID LOGAN, II,

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No. 2:15-cv-0121 AC P

Plaintiff,
v.

ORDER

EVALYN HORWITZ, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for

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all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 6.

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On June 29, 2015, the court issued an order denying plaintiff’s motion for in forma

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pauperis status pursuant to the three strikes provision of the Prison Litigation Reform Act of 1995

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(PLRA). ECF No. 29; 28 U.S.C. § 1915(g). The court found that plaintiff had filed at least eight

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different cases that qualified as strikes under § 1915(g) and that the complaint did not allege

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plaintiff was “under imminent danger of serious physical injury.” ECF No. 29. Plaintiff was

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ordered to pay the filing fee within twenty-one days of the court’s order or face dismissal of this

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action. Id.

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The twenty-one day period passed and plaintiff did not pay the filing fee, but he did file a
motion to amend that indicated that he might be “under imminent danger of serious physical

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injury.” ECF No. 30. Plaintiff was given an opportunity to amend the complaint and was advised

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that if he chose not to amend the complaint, or if the amended complaint did not contain an

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allegation of imminent danger of serious physical injury, this action would be dismissed unless he

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paid the filing fee. ECF No. 31 at 2. In granting plaintiff’s motion to amend, plaintiff was

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informed that the court could not refer to previous pleadings and that the amended complaint

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needed to state all the claims he wanted to bring and be filed as a single document. Id. Plaintiff

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was also warned that the court would not consider piecemeal, partial filings. Id. The court has

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already granted plaintiff one extension of his time to file an amended complaint. ECF No. 34.

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Since being granted an extension of time to file an amend complaint, plaintiff has filed

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five additional requests for extension of time, two of which also request to add defendants to the

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complaint or amend the complaint to increase the damages sought. ECF Nos. 36, 39, 41, 46, 48.

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Plaintiff has also filed a first amended complaint. ECF No. 37. However, the amended complaint

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does not comply with the instructions given by the court and plaintiff has filed numerous other

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documents in which he asks to add defendants to the complaint. Id. at 2; ECF Nos. 40, 42, 44, 45.

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Plaintiff has not complied with the court’s orders related to the form of the amended

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complaint. The first amended complaint filed by plaintiff clearly seeks to supplement, rather than

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replace, the original complaint. Moreover, it has been followed up with numerous piecemeal

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requests to add additional defendants. The court will disregard the first amended complaint and

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various requests to amend or add to the complaint and plaintiff will be given one more

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opportunity to file an amended complaint that complies with the court’s instructions. Because

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plaintiff is being given another opportunity to file an amended complaint, his motions for

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extension will be denied as moot.

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If plaintiff chooses to amend his complaint, the amended complaint must be one

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document and include all of the claims plaintiff wants to make, because the court will not look at

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the claims or information in the original complaint or any other documents plaintiff has already

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filed. The court will not look at any separate documents plaintiff files after filing the amended

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complaint. In other words, any claims not in the amended complaint will not be considered.

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The first amended complaint must be on the form for prisoner civil rights complaints
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which will be provided to plaintiff. Plaintiff must list all defendants that he wants to bring a

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claim against and explain what they did that he believes violates his rights. The court will not

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consider any claims against defendants who are not named in the amended complaint. If plaintiff

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needs more space to explain all of his claims, he may use additional sheets of paper and attach

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them directly to the complaint form. The additional pages must be filed with the complaint form,

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not as separate documents.

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If plaintiff does not file an amended complaint within thirty days of service of this order,

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or if the amended complaint does not contain an allegation that plaintiff is in imminent danger of

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serious physical injury, this case will be dismissed unless plaintiff pays the filing fee.

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Summary

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The court will not look at plaintiff’s amended complaint or requests to amend the

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complaint or add defendants to the complaint because plaintiff did not follow the court’s previous

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instructions. Plaintiff will have one more chance to file an amended complaint. Plaintiff may file

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a first amended complaint and must follow the instructions set out above.

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If plaintiff does not file an amended complaint within thirty days of service of this order,

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or if the amended complaint does not contain an allegation that plaintiff is in imminent danger of

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serious physical injury, this case will be dismissed unless plaintiff pays the filing fee.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint and requests to amend or add to the complaint

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(ECF Nos. 40, 42, 44, 45) are disregarded.

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2. Plaintiff’s motions for extension (ECF Nos. 36, 39, 41, 46, 48) are denied as moot.

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3. Within thirty days of service of this order, plaintiff shall submit an original and one

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copy of the amended complaint. Plaintiff’s amended complaint shall comply with the

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requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, the Local Rules of

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Practice, and the instructions contained in this order. The amended complaint must also bear the

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docket number assigned to this case and must be labeled “First Amended Complaint.” Failure to

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file an amended complaint in accordance with this order will result in dismissal of this action

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unless plaintiff pays the filing fee.
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4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

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form used in this district.

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DATED: February 10, 2016

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