(PC) Rials v. Lozano et al

Filing 15

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/20/20 ORDERING that plaintiff is granted 21 days within which to complete and return the attached form notifying the court whether he wants to proceed on a claim under the Eighth Amendment fo r sexual abuse against defendant Bowen and a claim under the Eighth Amendment for failure to protect against defendants Lozano and Footman or whether he wishes to file a second amended complaint in an attempt to cure the deficiencies in his amended complaint. If plaintiff does not return the form, this action will proceed on the claims described above.(Plummer, M)

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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 JAMES ALEXANDER RIALS, 12 Plaintiff, 13 14 No. 2:19-cv-2152 TLN CKD P v. ORDER J. LOZANO, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed 17 18 pursuant to 42 U.S.C. § 1983. Plaintiff’s amended complaint is before the court for screening 19 under 28 U.S.C. § 1915A(a). The court has conducted the required screening and finds that 20 plaintiff may proceed on a claim under the Eighth Amendment for sexual abuse against defendant 21 Bowen and a claim under the Eighth Amendment for failure to protect against defendants Lozano 22 and Footman. The amended complaint fails to state claims upon which relief can be granted 23 against any other defendant. At this point, plaintiff has two options: 1) he may proceed on claims described above; or 24 25 2) make an attempt to cure the deficiencies in his amended complaint with respect to the other 26 defendants and claims in a second amended complaint. If plaintiff choses to amend, he should 27 refer back to the court’s March 23, 2020 order for guidance. 28 ///// 1 1 Finally, plaintiff is reminded if he elects to amend that the court cannot refer to a prior 2 pleading in order to make the second amended complaint complete. Local Rule 220 requires that 3 an amended complaint be complete in itself without reference to any prior pleading. This is 4 because, as a general rule, an any amended complaint supersedes all other pleadings. See Loux v. 5 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 6 In accordance with the above, IT IS HEREBY ORDERED that plaintiff is granted 21 days 7 within which to complete and return the attached form notifying the court whether he wants to 8 proceed on a claim under the Eighth Amendment for sexual abuse against defendant Bowen and a 9 claim under the Eighth Amendment for failure to protect against defendants Lozano and Footman 10 or whether he wishes to file a second amended complaint in an attempt to cure the deficiencies in 11 his amended complaint. If plaintiff does not return the form, this action will proceed on the 12 claims described above. 13 Dated: November 20, 2020 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 1 rial2152.op 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 14 JAMES ALEXANDER RIALS, Plaintiff, 15 16 17 No. 2:19-cv-2152 TLN CKD P PLAINTIFF’S NOTICE OF v. J. LOZANO, et al., HOW TO PROCEED Defendants. 18 19 Check one: 20 _____ Plaintiff wants to proceed immediately on a claim under the Eighth Amendment for sexual 21 abuse against defendant Bowen and a claim under the Eighth Amendment for failure to protect 22 against defendants Lozano and Footman. 23 _____ Plaintiff wants time to file a second amended complaint. 24 DATED: 25 ________________________________ Plaintiff 26 27 28 3

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