Rhinehart v. Cate et al

Filing 17

ORDER GRANTING MOTION TO LIFT STAY; GRANTING LEAVE TO FILE AN AMENDED COMPLAINT; INSTRUCTIONS TO THE CLERK.. Signed by Judge JEFFREY S. WHITE on 9/19/11. (jjoS, COURT STAFF) (Filed on 9/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL JOSEPH RHINEHART,

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Plaintiff,
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v.
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MATTHEW CATE, Director of the
California Department of Corrections and )
Rehabilitation; A. HEDGPETH, Warden; )
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K. HARRINGTON, Warden,
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Defendants.
_________________________________

No. C 11-0812 JSW (PR)
ORDER GRANTING MOTION TO
LIFT STAY; GRANTING LEAVE
TO FILE AN AMENDED
COMPLAINT; INSTRUCTIONS
TO CLERK

(Docket Nos. 12, 13)

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Plaintiff, a California prisoner proceeding pro se, filed this rights action pursuant
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to 42 U.S.C. § 1983 against three prison officials. Defendants’ motion to stay the
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proceedings was granted pending the outcome of Plaintiff’s case on the same claim in the
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state courts. See Nakash v. Marciano, 882 F.2d 1411, 1415 (9th Cir. 1989) (“[A] federal
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court may stay its proceedings in deference to pending state proceedings”). As ordered
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by the Court, the parties have indicated that the state court proceedings have been
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concluded in the state superior and appellate courts, and Plaintiff indicates that he has no
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intention to appeal to a higher court. Consequently, Plaintiff’s motion to lift the stay
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(docket number 12) is GRANTED.
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Plaintiff has filed a motion for leave to file an amended complaint. In his motion
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he describes a claim, involving the deprivation of outdoor exercise between May 2010

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and July 2011, and he states that he would like to “add” the claim. Plaintiff may file an

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amended complaint, but he may not present his claims in piecemeal fashion. That is to

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say, any amended complaint must include all of the claims he wishes to present. Leave

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to file an amended complaint, within thirty (30) days from the date this order is filed is

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GRANTED. The amended complaint must include the caption and civil case number

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used in this order (Case No. C 11-0812 JSW (PR)) and the words “COURT-ORDERED

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FIRST AMENDED COMPLAINT” on the first page, and it must be filed on the Court’s

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form civil rights complaint, a copy of which will be mailed to Plaintiff with this order.

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Because an amended complaint completely replaces the original complaint, see

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate

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material from the original or amended complaints by reference. He must include all of

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the claims he wishes to present in the amended complaint; if the claim from his original

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complaint is not included in the amended complaint, it will be dismissed without further

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opportunity to raise it. If Plaintiff does not file an amended complaint within the

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designated time and in accordance with this order, he will not have another opportunity

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to amend, and this case will proceed based only upon the claim in the original complaint.

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The Clerk shall reopen the file, and mail a copy of the Court’s form civil rights
complaint to Plaintiff along with this order.
IT IS SO ORDERED.
DATED: September 19, 2011

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL JOSEPH RHINEHART,

Case Number: CV11-00812 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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MATTHEW CATE et al,

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Defendant.

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 19, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Michael L. Rhinehart
#:C39412
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960
Dated: September 19, 2011
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk