(PC) Calderon v. Gomez et al

Filing 21

ORDER signed by Magistrate Judge Allison Claire on 8/27/2024 GRANTING plaintiff's 2 , 19 requests to proceed ifp and DENYING as unnecessary plaintiff's 6 , 8 requests to amend the complaint. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order. The Clerk shall send plaintiff a prisoner complaint form and a copy of the letter attached to his request for leave to amend (ECF No. 6 at 3) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JACK LEE CALDERON,

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Plaintiff,

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No. 2:23-cv-0689 AC P

v.

ORDER

J. MAYHEW, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF Nos. 2, 19.

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Also before the court is plaintiff’s requests to amend his complaint. ECF Nos. 6, 8.

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I.

Application to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

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§ 1915(a). ECF Nos. 2, 19. Accordingly, the request to proceed in forma pauperis is 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 this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff's prison trust account. 28
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U.S.C. § 1915(b)(2). These payments will be forwarded by the appropriate agency to the Clerk of

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the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in

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full. Id.

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II.

Requests to Amend the Complaint
Plaintiff has filed two requests to amend his complaint. ECF Nos. 6, 8. In the first, it

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appears that plaintiff seeks to add state law and retaliation claims. ECF No. 6. In the second, it

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appears that plaintiff seeks to add retaliation claims. ECF No. 8. Since plaintiff is still within the

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time for filing an amended complaint as of right, see Fed. R. Civ. P. 15(a)(1), the request to

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amend is denied as moot.

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If plaintiff chooses to amend the complaint, he is advised that he may only join multiple

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claims if they are all against a single defendant, Fed. R. Civ. P. 18(a), and he may only join

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defendants where the right to relief arises out of the same “transaction, occurrence, or series of

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transactions,” and “any question of law or fact common to all defendants will arise in the action,”

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Fed. R. Civ. P. 20(a)(2). In other words, joining more than one claim is only proper when it is

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against one defendant, and joining multiple defendants in one complaint is only proper when the

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claims against them are based on the same facts. Plaintiff must decide which related claims and

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defendants he wants to pursue in this action, and any unrelated claims involving different

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defendants must be brought in separate suits.

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Plaintiff is further informed that the court cannot refer to a prior pleading to make his first

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amended complaint complete. Local Rule 220 requires that an amended complaint be complete

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in itself without reference to any prior pleading. This is because, generally, an amended

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complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)

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(citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir.

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2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled in

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subsequent amended complaint to preserve appeal). Once plaintiff files a first amended

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complaint, the original complaint no longer serves any function in the case. Therefore, in an

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amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged. In the event plaintiff does not file an amended complaint,
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the court will proceed to screen the original complaint.
In his first request to amend plaintiff also requests that the court return his attachment—a

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letter from the California Department of General Services—because he was unable to make

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copies and sent the original. ECF No. 6 at 2. As a one-time courtesy, plaintiff will be provided a

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copy of the exhibit. However, plaintiff is advised that he should not send original documents to

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the court as the court does not return documents and will not provide copies in the future unless

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plaintiff pays the applicable costs.

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

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1. Plaintiff’s requests for leave to proceed in forma pauperis (ECF No. 2, 19) are

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

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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appropriate agency filed concurrently herewith.

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3. Plaintiff’s requests to amend the complaint (ECF Nos. 6, 8) are DENIED as
unnecessary.

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4. If plaintiff does not file an amended complaint within thirty days of the service of this

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order, the court will assume that he is choosing to proceed on the original complaint, which will

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then be screened in due course.

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5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint

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form used in this district and a copy of the letter attached to his request for leave to amend (ECF

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No. 6 at 3).

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DATED: August 27, 2024

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