Tatum v. Beard et al

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/2017 DISMISSING 15 first amended complaint with leave to amend within 30 days and DENYING 20 Motion to Compel as moot. (Henshaw, R) Modified on 4/28/2017 (Donati, J).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD EUGENE TATUM,

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No. 2:15-cv-551-EFB P

Plaintiff,
v.

ORDER

JEFFREY A. BEARD, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

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brought under 42 U.S.C. § 1983. He was ordered to file an amended complaint, ECF No. 8, and

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he subsequently filed two amended complaints, two declarations in support of the amended

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complaints, over fifty pages of exhibits, a “notice of mistakes” contained in earlier filings, and a

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motion to compel service of the complaint (ECF Nos. 12, 15, 16, 17, 18, 20), all of which must

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now be reviewed under 28 U.S.C. § 1915A(a).

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).
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As noted, there are now two amended complaints. ECF Nos. 12 & 15. In screening this

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action, the court looks to the most recently filed complaint. ECF No. 15. See Hal Roach Studios,

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Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that an amended

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pleading supersedes the original). But plaintiff’s subsequently filed notice and declarations

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indicate that he wants to further amend or add to his complaint in a piecemeal fashion through

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separate filings. This is not the proper procedure for amending the existing complaint.1

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An amended complaint supersedes any earlier filed complaint, and once an amended

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complaint is filed, the earlier filed complaint no longer serves any function in the case. See

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Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes

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the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967)). Accordingly, plaintiff may not amend his complaint in such a piecemeal

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fashion. Filing separate documents that are intended to be read together and taken as a single

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complaint is not permitted. If plaintiff wishes to add, omit, or correct information in the operative

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complaint, he must file an amended complaint that is complete within itself. Plaintiff’s amended

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complaint is therefore dismissed with leave to amend in accordance with the requirements set

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forth in this order.2

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When a plaintiff is allowed to amend his complaint, he must write or type the amended

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complaint so that it is complete in itself without reference to any earlier filed complaint. L.R.

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220. That is, plaintiff must file a single amended complaint that includes all information relevant

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to his claim(s).

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Any amended complaint shall clearly set forth the claims and allegations against each

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defendant, and must identify as a defendant only persons who personally participated in a

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substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d

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740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if

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In addition, plaintiff is reminded that the court is not a repository for his evidence and he
shall not file documentary evidence in support of his claims unless it is necessary for the
resolution of a motion.

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In light of this order, plaintiff’s motion to compel service of the complaint is denied as

moot.
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he does an act, participates in another’s act or omits to perform an act he is legally required to do

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that causes the alleged deprivation). Any amended complaint must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978).

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Plaintiff is cautioned that he not join unrelated claims against different defendants in a

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single complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The controlling principle

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appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as

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alternate claims, as many claims . . . as the party has against an opposing party.’ Thus multiple

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claims against a single party are fine, but Claim A against Defendant 1 should not be joined with

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unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in

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different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit

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produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation

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Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without

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prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007).

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Although plaintiff’s allegations are held to “less stringent standards than formal pleadings

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drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), plaintiff is

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required to comply with the Federal Rules of Civil Procedure and the Local Rules of the Eastern

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District of California. See McNeil v. United States, 508 U.S. 106, 113 (1993) (procedural

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requirements apply to all litigants, including prisoners lacking access to counsel); L.R. 183(a)

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/////
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(“Any individual representing himself or herself without an attorney is bound by the Federal

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Rules of Civil or Criminal Procedure, these Rules, and all other applicable law.”).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The amended complaint (ECF No. 15) (and the intended amendments thereto (ECF

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Nos 16, 17, 18) is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “Second

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Amended Complaint.” Failure to comply with this order may result in this action

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being dismissed for failure to prosecute. If plaintiff files an amended complaint stating

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a cognizable claim the court will proceed with service of process by the United States

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Marshal.
2. Plaintiff’s motion to compel service of the complaint (ECF No. 20) is denied as moot.
Dated: April 27, 2017.

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