Rankins v. Liu et al

Filing 39

ORDER signed by Magistrate Judge Deborah Barnes on 6/6/2017 ORDERING plaintiff's 35 motion to amend is GRANTED; plaintiff has 30 days to file an amended complaint; the Clerk shall send plaintiff a prisoner complaint form; and defendant's 28 motion to dismiss is DENIED as moot. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NORMAN RANKINS,

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Plaintiff,

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No. 2:15-cv-01164 KJM DB

v.

ORDER

ALEXANDER LIU, et al.,

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Defendants.

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Plaintiff, Norman Rankins, is a state prisoner proceeding pro se and in forma pauperis in

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an action brought under 42 U.S.C. § 1983. Plaintiff asserts a claim under the Eighth Amendment

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for deliberate indifference to medical needs. He alleges that defendant Alexander Liu, M.D.,

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inadequately and tardily treated various urological conditions, causing him to suffer a hernia and

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permanent incontinence.

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Dr. Liu filed a motion to dismiss, generally arguing that plaintiff has failed to state a

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cognizable Eighth Amendment claim. Plaintiff, for his part, filed a motion to amend. Therein, he

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seeks to add language to his amended complaint clarifying that he is suing Dr. Liu in his

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individual and official capacities. Dr. Liu has not opposed the motion to amend. Therefore, the

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court will grant the motion to amend. Consequently, the court will deny as moot the motion to

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dismiss.

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Plaintiff’s motion to amend did not include a complete Second Amended Complaint as

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required by Local Rule 220. Plaintiff will be given the opportunity to file a Second Amended

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Complaint. Plaintiff is advised that in an amended complaint he must clearly identify the

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defendant and the action the defendant took that violated his constitutional rights. If plaintiff

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wishes to add a claim, he must include it in the body of the complaint. The charging allegations

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must be set forth in the amended complaint so defendant has fair notice of the claims plaintiff is

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presenting. That said, plaintiff need not provide every detailed fact in support of his claims.

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Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a).

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Any amended complaint must show the federal court has jurisdiction, the action is brought in

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the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must contain a

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request for particular relief. Plaintiff must identify as a defendant only persons who personally

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participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R.

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Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R.

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Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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An amended complaint must be complete in itself without reference to any prior pleading.

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E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded.
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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has

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evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend (ECF No. 35) is granted;

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

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

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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

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number assigned this case and must be labeled “Second Amended Complaint.” Plaintiff must file

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an original and two copies of the amended complaint.
3. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
form used in this district.
4. Defendant’s motion to dismiss is (ECF No. 28) is denied as moot.
Dated: June 6, 2017

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DLB:11
DLB1/prisoner-civil rights/rank1164.mta.order(revised)

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