Kumar v. Johnson et al

Filing 14

ORDER signed by Magistrate Judge Kendall J. Newman on 6/8/16 ORDERING that plaintiff's amended complaint (ECF No. 13 ) is DISMISSED with 30 days to file a second amended complaint; if plaintiff does not file a second amended complaint within that time, the court will order service of those claims found colorable in the original complaint.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANIL KUMAR,

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Plaintiff,

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No. 2: 16-cv-0768 KJN P

v.

ORDER

JEH JOHNSON, et al.,

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Defendants.

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Plaintiff is an immigration detainee, and is proceeding without counsel. Plaintiff seeks

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relief pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Federal Agents of the

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Fed. Bureau of Narcotics, 403 U.S. 388 (1971). On May 19, 2016, the undersigned dismissed

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plaintiff’s complaint with leave to amend. (ECF No. 12.) Pending before the court is plaintiff’s

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amended complaint. (ECF No. 13.)

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In the original complaint, plaintiff challenged various conditions at the Yuba County Jail.

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Named as defendants were Secretary of the Department of Homeland Security (“DHS”) Director

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Johnson, Director of U.S. Immigration and Customs Enforcement (“ICE”) Saldana, ICE

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Executive Associate Director of Enforcement and Removal Operations Homan, ICE Field Office

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Director Macias, Attorney General Lynch and Yuba County Sheriff Dufor. Plaintiff alleged that

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he was suing defendants in their official capacities.

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In the May 19, 2016, order, the undersigned found that plaintiff’s claim for injunctive

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relief against the federal defendants was not cognizable, because the Ninth Circuit recently held

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that relief under Bivens does not encompass declaratory and injunctive relief when the injunctive

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relief sought requires official government action. (ECF No. 12 at 3.) The undersigned dismissed

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plaintiff’s claim for damages against the federal defendants with leave to amend. (Id. at 3-4.)

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The undersigned found that plaintiff had pled no specific facts demonstrating that the conduct of

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the federal defendants violated his constitutional rights. (Id. at 4.) The undersigned found the

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claims against defendant Sheriff Dufor to state potentially cognizable claims for relief. (Id.) The

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undersigned ordered that if plaintiff did not file an amended complaint, he would order service of

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defendant Durfor. (Id. at 8.)

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Plaintiff’s amended complaint names the same defendants as those named in the original

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complaint. (ECF No. 13.) However, the amended complaint appears only to address the claims

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against the federal defendants. Plaintiff argues that the federal defendants had knowledge of the

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allegedly unconstitutional conditions by way of a federal consent decree. Plaintiff’s amended

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complaint does not include his claims against defendant Sheriff Dufor. Plaintiff’s amended

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complaint also does not describe each at-issue condition as did the original complaint, i.e.,

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inability to practice Catholic religion, inadequate clean clothing, etc.

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The court cannot refer to a prior pleading in order to make plaintiff’s amended complaint

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complete. Local Rule 220 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This requirement exists because, as a general rule, an amended

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

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Once plaintiff files an amended complaint, the original pleading no longer serves any function in

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the case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.

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Plaintiff’s amended complaint does not comply with Local Rule 220 because it is not

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complete in itself. For this reason, the amended complaint is dismissed. Plaintiff is granted thirty

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days to file a second amended complaint that includes all claims and allegations against all

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defendants.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint (ECF No. 13) is dismissed;

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2. Plaintiff is granted thirty days to file a second amended complaint; if plaintiff does not

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file a second amended complaint within that time, the court will order service of those claims

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found colorable in the original complaint.

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Dated: June 8, 2016

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Kum768.ame
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