(PC) Hammler v. Cota et al

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/3/2020 ORDERING, within 30 days, plaintiff shall complete and return the attached notice advising the court how he elects to proceed. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

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No. 2:19-cv-1423-JAM-EFB P

Plaintiff,

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v.

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E. COTA, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In accordance with the order filed March 24, 2020, plaintiff may either proceed

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with his potentially cognizable First Amendment retaliation claims against defendants Cota,

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Burnes, Hubbard, Case, and Salcedo only or he may amend his complaint to attempt to cure the

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defects in the claims that were dismissed with leave to amend, namely: (1) plaintiff’s substantive

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First Amendment claims against Hubbard for preventing him from speaking with a psychologist

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and against Tumacder; (2) plaintiff’s First Amendment retaliation claims against Mccarvel,

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Tumacder, Garza, and Rodriguez; and (3) plaintiff’s substantive due process, procedural due

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process, equal protection, and “deliberate indifference” claims. He may not, however, change the

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nature of this suit by alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). Moreover, plaintiff is not obligated to amend his complaint.

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If plaintiff chooses to file an amended complaint, he should note that any amended

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complaint must identify as a defendant only persons who personally participated in a substantial

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way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act,

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participates in another’s act or omits to perform an act he is legally required to do that causes the

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alleged deprivation).

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Further, any amended complaint must be written or typed so that it so that it is complete in

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itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an

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amended complaint supersedes any earlier filed complaint, and once an amended complaint is

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filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v.

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Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original,

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the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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Accordingly, it is ORDERED that:

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1.

Within thirty days plaintiff shall return the notice below advising the court whether

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he elects to proceed with the potentially cognizable claims or file an amended

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complaint. If the former option is selected and returned, the court will enter an

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order directing service at that time; and

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2.

Failure to comply with any part of this this order may result in dismissal of this
action.

DATED: April 3, 2020.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

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No. 2:19-cv-1423-JAM-EFB P

Plaintiff,

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NOTICE OF ELECTION

v.
E. COTA, et al.,

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Defendants.

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In accordance with the court’s order, plaintiff hereby elects to:

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(1) ______ proceed only with the potentially cognizable First Amendment retaliation
claims against defendants Cota, Burnes, Hubbard, Case, and Salcedo.

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OR
(2) ______

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delay serving any defendant and files an amended complaint.

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_________________________________

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Plaintiff

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Dated:

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