(PC) Martin v. Petras et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/20/2020 GRANTING plaintiff's 2 request to proceed ifp and DISMISSING plaintiff's complaint with leave to file an amended complaint within 30 days. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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O.Z. MARTIN,

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No. 2:20-cv-1536 WBS CKD P
Plaintiff,

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v.

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PETRAS, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983 and California tort law. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a

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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court has conducted the required screening and finds that plaintiff’s complaint violates Rule 8 of

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the Federal Rules of Civil Procedure which requires that pleadings be short and plain. Plaintiff’s

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complaint is 29 pages and would be about 75 pages if plaintiff’s handwriting approximated

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normal font size and spacing. Accordingly, plaintiff’s complaint will be dismissed. Plaintiff will

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be granted leave to amend, but any amended complaint must not exceed 20 pages with normal

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spacing and font size.

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With respect to plaintiff’s claim concerning medical care, plaintiff is informed that denial

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or delay of medical care can violate the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97,

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104-05 (1976). A violation occurs when a prison official causes injury as a result of his or her

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deliberate indifference to a prisoner’s serious medical needs. Id.

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Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of this order, the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the
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docket number assigned this case and must be labeled “Amended Complaint.” Failure to file an

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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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Dated: November 20, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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