Oliver v. Shelton et al

Filing 63

ORDER signed by Magistrate Judge Dennis M. Cota on 2/25/2021 ORDERNG the Clerk is directed to terminate "T. Hatley," "Trevor Hatley," "D. Shelton," and "Duane Shelton" as defendants to this action because the y are no longer named in the operative amended complaint. The Clerk is directed to update the docket to reflect that this action proceeds against Defendant "David Mell" only. The 61 motion to dismiss filed by T. Hatley and D. Shelton is DENIED as unnecessary because Plaintiff no longer names those individuals as defendants to this action. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARON MICHAEL OLIVER,

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Plaintiff,

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No. 2:18-CV-1809-KJM-DMC

v.

ORDER

MELL,1

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Defendant.

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Plaintiff, who is proceeding pro se, brings this civil action. This action proceeds

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on Plaintiff’s third amended complaint filed on February 1, 2020. See ECF No. 59. Plaintiff no

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longer names as defendants T. Hatley or D. Shelton. See id.

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Defendant has been variously named throughout this action. In the original
complaint, Plaintiff listed “Sgt. Mel.” ECF No. 1, pg. 1. In his answer to the original complaint,
Defendant states his name is “David Mell.” ECF No. 18, pg. 1. In his first and second amended
complaint, Plaintiff again lists Defendant’s name as “Sgt. Mel.” ECF Nos. 34, pg. 1, and 36, pg.
1. In his third amended complaint, Plaintiff names the defendant as “Sgt. David Melboure.” ECF
No. 40, pg. 1. In the operative amended complaint, filed on February 1, 2021, pursuant to the
District Judge’s January 21, 2021, order, Plaintiff states the only named defendant is “David
Melborue.” ECF No. 59, pg. 1. Defendant’s answer to the operative amended complaint states
his name is “David Mell.” ECF No. 60, pg. 1. The Court will presume, until informed by
Plaintiff otherwise, that his various spellings refer to the same individual – David Mell. The
Clerk of the Court will be directed to update the docket to reflect the spelling of Defendant’s
name as indicated in his most recent answer at ECF No. 60.
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As a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the

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complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's amended

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complaint complete. See Local Rule 220. An amended complaint must be complete in itself

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without reference to any prior pleading. See id. Here, the third amended complaint no longer

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names as defendants T. Hatley or D. Shelton. Any claims Plaintiff had previously asserted

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against these individuals are, therefore, abandoned. This action shall proceed on the third

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amended complaint against Defendant Mell only.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Clerk of the Court is directed to terminate “T. Hatley,” “Trevor

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Hatley,” “D. Shelton,” and “Duane Shelton” as defendants to this action because they are no

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longer named in the operative amended complaint;

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2.

The Clerk of the Court is directed to update the docket to reflect that this

action proceeds against Defendant “David Mell” only; and

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3.

The motion to dismiss, ECF No. 61, filed by T. Hatley and D. Shelton is

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denied as unnecessary because Plaintiff no longer names those individuals as defendants to this

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action.

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Dated: February 25, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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