Warner v. Stoller et al

Filing 16

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/27/2017 DISMISSING plaintiff's amended complaint and plaintiff has 30 days to file a second amended complaint in accordance with this order. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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No. 2:16-cv-2143 CKD P
Plaintiff,

v.

ORDER

M. STOLER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. He has consented to have all matters in this action before a United States Magistrate Judge.

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See 28 U.S.C. § 636(c).

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On November 23, 2016, the court screened plaintiff’s complaint pursuant to 28 U.S.C. §

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1915A(a). The court found plaintiff’s original complaint fails to state a claim upon which relief

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can be granted. The original complaint was dismissed with leave to file an amended complaint

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and with guidance and instructions as to the contents of the amended complaint. Plaintiff has

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now filed an amended complaint. The court has reviewed the amended complaint and finds that it

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also fails to state a claim upon which relief can be granted for essentially the same reasons as the

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original.

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Good cause appearing, plaintiff will be given one final opportunity to cure the defects in
his pleadings. Plaintiff should review the court’s November 23, 2016 order, and review the legal
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principles identified therein, in determining whether he should file a second amended complaint.

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If he elects to do so, he must adhere to all instructions given in the order. Plaintiff is further

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advised as follows:

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1. Generally speaking, there are two types of denial of access to courts claims: 1) those

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involving the right to assistance through, among other things, provision of legal materials or legal

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advice; and 2) those involving the literal denial of access to the courts, e.g. not permitting an

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inmate to communicate with a court. Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011)

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overruled on other grounds in Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). With

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respect to an inmate’s challenge to his conviction or sentence and with respect to actions under 42

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U.S.C. § 1983 for violations of civil rights, some affirmative assistance is required. Lewis v.

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Casey, 518 U.S. 343, 354 (1996). With respect to other civil actions, inmates have the more

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minimal right to not literally be denied access through the erection of barriers to claims that have

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a reasonable basis in law or fact. Silva, 658 F.3d at 1102-03. In either case, the right to access is

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“ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being

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shut out of court.” Christopher v. Harbury, 536 U.S. 403, 415 (2002).

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2. Plaintiff’s second amended complaint cannot exceed 20 pages. Further, plaintiff must

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be careful not to include irrelevant background information or other information which is not

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material to any claim upon which this court can grant relief. Plaintiff must be mindful that Rule

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8(a)(2) of the Federal Rules of Civil Procedure demands “a short and plain statement of the claim

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showing that the pleader is entitled to relief” giving “the defendant fair notice of what the . . .

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claim is and the grounds upon which it rests.’”

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3. Plaintiff may handwrite his second amended complaint, but he must write legibly; his
amended complaint is, at times, not legible.

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Once again, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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

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1. Plaintiff’s amended complaint is dismissed.

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

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amended complaint that complies with the requirements of this order, the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended

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complaint must bear the docket number assigned this case and must be labeled “Second Amended

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Complaint.” Failure to file a second amended complaint in accordance with this order will result

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in dismissal.

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Dated: July 27, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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warn2143.14(2)

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