Sierra v. Director of CDCR et al

Filing 89

ORDER signed by Magistrate Judge Kendall J. Newman on 7/8/2021 VACATING 83 Order; GRANTING Request to Proceed IFP; and GRANTING Plaintiff 30 days from the date of this order to file a second amended complaint. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH ALAN SIERRA,

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No. 2: 16-cv-1067 MCE KJN P

Plaintiff,
v.

ORDER

DIRECTOR OF DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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

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42 U.S.C. § 1983. On May 5, 2017, the court denied plaintiff’s application to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915(g), and ordered plaintiff to pay the filing fee within thirty

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days. (ECF No. 64.) Plaintiff appealed the May 5, 2017 order to the Ninth Circuit Court of

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Appeals. (ECF No. 65.)

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On March 5, 2021, the Ninth Circuit dismissed plaintiff’s appeal for failure to prosecute.

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(ECF No. 82.) On March 9, 2021, the Ninth Circuit reinstated plaintiff’s appeal. (ECF No. 85.)

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This order was docketed in this court on April 27, 2021. (Id.)

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On April 27, 2021, the Ninth Circuit reversed the May 5, 2017 order and remanded this

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matter. (ECF No. 87.) The Ninth Circuit found that plaintiff met the imminent danger exception

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to section 1915(g). (Id.) The Ninth Circuit also found that section 1915(g) was no longer

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applicable because plaintiff was released while the appeal was pending. (Id.) The Ninth Circuit

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directed this court to “reconsider anew any IFP application.” (Id.)

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On March 29, 2021, the undersigned ordered plaintiff to pay the filing fee within twenty-

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one days. (ECF No. 83.) The undersigned was unaware of the Ninth Circuit’s March 9, 2021

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order when he issued the March 29, 2021 order. Accordingly, the March 29, 2021 order is

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vacated. Pursuant to the Ninth Circuit’s April 27, 2021 order, the undersigned herein addresses

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plaintiff’s original in forma pauperis application and screens plaintiff’s amended complaint filed

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December 16, 2016. (ECF No. 34.)

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, the request to proceed in forma pauperis is granted.

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On December 16, 2016, plaintiff filed an amended complaint. (ECF No. 34.) On

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December 16, 2016, plaintiff also filed a motion to add parties to the amended complaint. (ECF

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No. 36.) The motion to add parties includes a points and authorities addressing plaintiff’s claims

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against three new defendants not named in the December 16, 2016 amended complaint. This

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points and authorities also does not address all of the claims raised against all defendants

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identified in the December 16, 2016 amended complaint.

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The court does not normally allow piecemeal amendments or piecemeal supplements to

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complaints. Because an amended complaint supersedes and replaces the original complaint, an

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amended complaint must stand on its own. See Local Rule 220; Ramirez v. County of San

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Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the

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original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once

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

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case.

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It does not appear that plaintiff intends to abandon the claims and defendants addressed in

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the amended complaint (ECF No. 34) but not addressed in the motion to add new parties (ECF

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No. 36). Accordingly, plaintiff’s motion to add new parties is disregarded because it is a

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piecemeal amendment in violation of Local Rule 220. Plaintiff is granted thirty days to file a

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second amended complaint raising all claims against all defendants he intends to name. If
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plaintiff does not file a second amended complaint within thirty days, the undersigned will screen

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the amended complaint filed December 16, 2016 (ECF No. 34). In other words, if plaintiff does

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not file a second amended complaint, the undersigned will not consider the claims against the

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new defendants identified in plaintiff’s December 16, 2016 motion to add new parties (ECF No.

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36).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The March 29, 2021 order (ECF No. 83) is vacated;

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2. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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

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complaint; if plaintiff does not file a second amended complaint within that time, the undersigned

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will screen the amended complaint filed December 16, 2016 (ECF No. 34).

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Dated: July 8, 2021

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Si1067.ord

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