Shufelt v. Miranda et al

Filing 32

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/23/18 VACATING 21 Findings and Recommendations; DISMISSING 17 Amended Prisoner Civil Rights Complaint; and GRANTING Plaintiff 30 days after being served with this order to file a second amended complaint that complies with the requirements of this order, the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. (Coll, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE W. SHUFELT, 12 Plaintiff, 13 14 No. 2:17-cv-1014 WBS CKD (PC) v. ORDER RAFAEL MIRANDA, et al., 15 Defendants. 16 Plaintiff is a California prisoner proceeding pro with an action filed pursuant to 28 U.S.C. 17 18 § 1983. On April 19, 2018, the court screened plaintiff’s amended complaint as the court is 19 required to do under 28 U.S.C. § 1915A(a). The court found that the amended complaint states 20 claims upon which plaintiff may proceed under the Eighth Amendment against defendants 21 Griffith, Miranda and Abdur-Rahman for denial or delay of medical treatment. The court 22 recommended that all other claims be dismissed. On June 6, 2018, plaintiff filed objections to the findings and recommendations. First, 23 24 plaintiff objected to the dismissal of claims against “doe” defendants. However, plaintiff cannot 25 proceed on a claim where there is no identifiable defendant. Plaintiff also objected to dismissal of his claims arising under state law. In the findings 26 27 and recommendations, plaintiff was informed: 28 ///// 1 1 With respect to claims asserted under California law, plaintiff has not adequately pled compliance with the terms of the California Tort Claims Act. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista Unified School Dist., 42 Cal.4th 201, 209 (2007). 2 3 4 Plaintiff asserts that he attached as exhibits to his amended complaint certain documents 5 6 which show he complied with the Tort Claims Act. The court has reviewed the documents 7 identified, and it does appear plaintiff may have complied, but it is not sufficient to attach exhibits 8 suggesting compliance rather than specifically pleading compliance. In light of the foregoing, and pursuant to plaintiff’s request, the court will grant plaintiff 9 10 leave to submit an amended complaint, so that he may attempt to plead compliance with the Tort 11 Claims Act. Plaintiff is reminded that that the court cannot refer to a prior pleading in order to make 12 13 plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 14 complaint be complete in itself without reference to any prior pleading. This is because, as a 15 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 16 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the original 17 pleading no longer serves any function in the case. Therefore, in a second amended complaint, as 18 in an original complaint, each claim and the involvement of each defendant must be sufficiently 19 alleged. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The findings and recommendations issued on April 19, 2018 are vacated; 22 2. Plaintiff’s amended complaint is dismissed; and 23 3. Plaintiff is granted thirty days from the date of service of this order to file a second 24 amended complaint that complies with the requirements of this order, the Civil Rights Act, the 25 Federal Rules of Civil Procedure, and the Local Rules of Practice; the second amended complaint 26 must bear the docket number assigned this case and must be labeled “Second Amended 27 ///// 28 ///// 2 1 Complaint;’ failure to file a second amended complaint in accordance with this order will result in 2 a recommendation that this action be dismissed. 3 Dated: October 23, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 1 shuf1014.vac 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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