(PC) Cox v. Daram

Filing 37

ORDER signed by Magistrate Judge Deborah Barnes on 4/1/2021 CONSTRUING 32 Motion as a Motion to File a Second Amended Complaint; GRANTING 32 Construed Motion; and GRANTING Plaintiff 30 days of the filed date of this order in which to file a Second Amended Complaint. The Clerk of the Court shall provide plaintiff with a copy of the form for a civil rights complaint by a prisoner along with the copy of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNEST LEE COX, Jr.,

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No. 2:20-cv-01295-KJM-DB P

Plaintiff,
v.

ORDER

VASUKI DARAM, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff moves to supplement his first

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amended complaint. In an order filed March 3, 2021, this court construed plaintiff’s filing as a

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motion to file a second amended complaint and ordered defendants to respond to plaintiff’s

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motion. Defendants responded that they have no opposition to plaintiff’s motion. Therefore, this

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court will grant plaintiff’s motion and permit plaintiff to file a second amended complaint. After

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that second amended complaint is filed, this court will screen it and, if plaintiff states claims

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cognizable under 42 U.S.C. § 1983, order an answer from defendants.

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Plaintiff is reminded of the following standards for filing an amended complaint. In an

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amended complaint he must clearly identify each defendant and the action that defendant took

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that violated plaintiff’s constitutional rights. The court is not required to review exhibits to

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determine what plaintiff’s charging allegations are as to each named defendant. If plaintiff

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wishes to add a claim, he must include it in the body of the complaint. The charging allegations
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must be set forth in the amended complaint so defendants have fair notice of the claims plaintiff is

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presenting. That said, plaintiff need not provide every detailed fact in support of the claims.

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Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a).

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Any amended complaint must show the federal court has jurisdiction, the action is brought

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in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

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contain a request for particular relief. Plaintiff must identify as a defendant only persons who

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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation

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of a constitutional right if he does an act, participates in another’s act or omits to perform an act

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he is legally required to do that causes the alleged deprivation). “Vague and conclusory

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allegations of official participation in civil rights violations are not sufficient.” Ivey v. Bd. of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

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R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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An amended complaint must be complete in itself without reference to any prior pleading.

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E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded.

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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has

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evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion (ECF No. 32), construed as a motion to file a second amended

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complaint, is granted. Within 30 days of the filed date of this order, plaintiff shall file a second

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amended complaint.

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2. The Clerk of the Court shall provide plaintiff with a copy of the form for a civil rights

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complaint by a prisoner along with the copy of this order.

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Dated: April 1, 2021

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DLB:9
DB/prisoner-civil rights/cox1295.mta granted

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