Witkin v. Lee et al

Filing 16

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/18/2018 ORDERING, within 21 days, plaintiff shall complete and return the attached form notifying the court whether he wants to proceed on his Eighth Amendment claims against defendants Alvarez, Dinh, Lee, Matteson, Maurino, Arnold and Neuschmid, or whether he wishes to file a third amended complaint in an attempt to cure the deficiencies with respect to his claims arising under California law. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL AARON WITKIN,

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No. 2:17-cv-0232 JAM CKD P

Plaintiff,
v.

ORDER

M. LEE, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. Plaintiff’s second amended complaint is before the court for

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screening under 28 U.S.C. § 1915A(a). The court has conducted the required screening and finds

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that the second amended complaint states claims upon which plaintiff may proceed under the

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Eighth Amendment against defendants Alvarez, Dinh, Lee, Matteson, Maurino, Arnold and

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Neuschmid for failure to provide Constitutionally adequate nutrition. As for plaintiff’s claim

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arising under California law, plaintiff has failed to plead compliance with the California Tort

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Claims Act, which he must do to proceed on any claim arising under California law against a

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state official. See Cal. Gov't Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v. California Pub.

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Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir.1995).

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At this point, plaintiff has two options: 1) he may proceed on his Eighth Amendment
claims; or 2) attempt to cure the deficiencies with respect to the claims arising under California
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law in third amended complaint. If plaintiff elects to amend, plaintiff is informed that the third

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amended complaint cannot exceed 20 pages and cannot refer to a prior pleading in order to make

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the third amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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

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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any

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

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and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that within twenty-one days

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plaintiff shall complete and return the attached form notifying the court whether he wants to

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proceed on his Eighth Amendment claims against defendants Alvarez, Dinh, Lee, Matteson,

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Maurino, Arnold and Neuschmid, or whether he wishes to file a third amended complaint in an

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attempt to cure the deficiencies with respect to his claims arising under California law. Failure to

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complete and return the attached form will result in a recommendation that this action be

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dismissed.

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Dated: September 18, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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witk0232.1

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL AARON WITKIN,
Plaintiff,

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No. 2:17-cv-0232 JAM CKD P

PLAINTIFF’S NOTICE OF

v.
M. LEE, et al.,

HOW TO PROCEED
Defendants.

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Check one:

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_____ Plaintiff wants to proceed immediately on Eighth Amendment against defendants Alvarez,

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Dinh, Lee, Matteson, Maurino, Arnold and Neuschmid for failure to provide Constitutionally

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adequate nutrition.

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_____ Plaintiff wants time to file a third amended complaint.

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DATED:
________________________________
Plaintiff

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