McInnis v. Vaughn et al

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/13/2018 ORDERING plaintiff's 12/6/2017 "amended complaints" is STRICKEN; and plaintiff has 30 days to file an amended complaint which complies with the terms of the court' s 11/16/2017 order. If plaintiff fails to file an amended complaint by the deadline, this action will proceed on plaintiffs claim arising under the Eighth Amendment against defendant Herrera identified in plaintiff's original complaint.(Yin, K) Modified on 3/13/2018 (Yin, K).

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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 ROBERT MCINNIS, 12 No. 2:17-cv-1318 CKD P Plaintiff, 13 v. 14 VAUGHN, et al., 15 ORDER Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se and in forma pauperis. On November 18 16, 2017, the court screened plaintiff’s complaint as the court is required to do under 28 U.S.C. § 19 1915A(a). The court found as follows: 20 21 22 23 24 25 26 27 28 The court has conducted the required screening and finds that plaintiff’s complaint states a claim against defendant Herrera upon which relief could be granted arising under the Eighth Amendment for excessive force as alleged by plaintiff in claim II. In all other respects, plaintiff’s complaint fails to state claims upon which relief can be granted. At this point, plaintiff has two options: 1) he may either proceed only on the claim identified above; or 2) attempt to cure the deficiencies with respect to other claims in an amended complaint. Plaintiff was informed that if he elected to file an amended complaint: [T]he court cannot refer to a prior pleading in order to make an amended pleading complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any 1 1 prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. 2 3 4 5 On December 6, 2017, plaintiff filed a document titled “amended complaints.” In that 6 document, plaintiff attempts to re-plead some of the claims presented in his original complaint 7 and adds new claims. However, he omits his claim against defendant Herrera. It appears 8 plaintiff’s intent is to supplement his claim against defendant Herrera, despite the court’s 9 admonition that his amended complaint needs to include all claims. 10 Also, plaintiff ignored that court’s admonition that: 11 Pursuant to Federal Rule of Civil Procedure 20(a)(2), plaintiff may join in one action as many claims as he has against one defendant. Other defendants can be joined to claims, but claims which are only against other defendants generally must be brought in a separate action. 12 13 14 Good cause appearing, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s December 6, 2016 “amended complaints” is stricken; and 16 2. Plaintiff is granted 30 days within which to file an amended complaint which complies 17 with the terms of the court’s November 16, 2017 order. If plaintiff fails to file an amended 18 complaint by the deadline, this action will proceed on plaintiff’s claim arising under the Eighth 19 Amendment against defendant Herrera identified in plaintiff’s original complaint. 20 Dated: March 13, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 1 mcin1318.sup 26 27 28 2

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